Precedent in Islamic Law With Special Reference To FSC

Islamic Studies 47:4 (2008) pp.
445–482 445
Precedent in Islamic Law with Special Reference to

the Federal Shariat Court and the Legal System in
Pakistan
MU╓AMMAD MUNIR*
Abstract
This paper attempts to answer the question whether the common law doctrine of
precedent as practiced in Pakistan is compatible with the traditional Islamic legal
L
system. The paper examines the role of the principles of Islamic law in the Pakistani
legal system and focuses on the role of the Federal Shariat Court and the binding status
H
of its decisions. The paper also examines the prevalent practice of courts in Saudi
Arabia and finds that judges there are not bound by the decisions of the higher courts.
Those who oppose the doctrine of precedent generally argue that this doctrine restricts
M
judges from undertaking ijtih┐d and that it is against the principle of independence of
judiciary. However, the supporters of precedent argue that the doctrine ensures
uniformity and analytical consistency in the legal system. It concludes that the practice
of binding precedent under Articles 189, 201 and 203 GG of the 1973 Constitution is
D
“institutionalized taql┘d” and that there is little, if any, material about the role of
precedent in Islamic law.
iipp
Let not a judgment you rendered yesterday, and that you have [later] reflected
upon, receiving guidance towards the correct view, prevent you from restoring a
right. Rights are ancient and cannot be annulled. Restoring a right is by far better
**
than persisting in a manifest error.
* I am very grateful to the editor Islamic Studies, Dr. Zafar Ishaq Ansari and one of the reviewers
of this paper for Islamic Studies whose comments led to its improvement and prompted me to
include subjects that had previously not been taken up. The author also wishes to thank Imran
A. K. Nyazee, Umer Gilani, Nida Tareen, Muhammad Zubair Abbassy for their comments on
this article. Special thanks go to Muhammad Mushtaq Ahmad for editing and commenting on
this work. The help of Dr. Ha╘╘a‘ al-Gh┐mid┘ and Dr. Fazlur Ra╒m┐n is gratefully
acknowledged. The views expressed here are, however, those of the author and he remains
responsible for any lapses.
**
The letter of ‘Umar ibn al-Kha══┐b (d. 23/644) to Ab┴ M┴s┐ al-Ash‘ar┘ (d. 44/665). For the
© Dr Muhammad Hamidullah Library, IIU, Islamabad. http://iri.iiu.edu.pk/

446 MUHAMMAD MUNIR
Introduction
This article deals with the issue of precedent in Pakistani law. Primarily, we
want to discuss the jurisdiction of the Federal Shariat Court (hereafter FSC)
and its attitude regarding precedent. However, this article will also discuss, in
the Pakistani legal context, the issue of precedent in Islamic legal theory as
such. The main questions that are raised in this paper are: What is the position
of Islamic legal principles in the Pakistani legal system? What is the basic
structure doctrine in its legal system? What is the jurisdiction of FSC? Is FSC
bound by the judgments of the Shariat Appellate Bench of the Supreme
Court? Also, is FSC bound by the decisions of the Supreme Court and the
High Courts in matters of law other than the question whether a certain law is
repugnant to the injunctions of Islam? Is FSC bound by the decisions of the
Shariat Bench of the High Courts that existed prior to constitution of FSC?
Does the doctrine of precedent enjoy validity in Islamic law? What is the
status of precedent in Islamic law? In other words, does Islamic law recognize
the principle that decisions of the higher courts are binding on the lower
courts? Is the practice of precedent in Pakistani law justifiable in Islamic
terms? What is the status of precedent in Islamic legal tradition? Considering
the case of a contemporary Muslim country, Saudi Arabia, it needs to be
asked: what is the status of precedent in the Saudi legal system as compared
with Pakistan? These are the main questions that are addressed in this paper.
However, other related questions will also be discussed along the way.
Literature Review
The topic of precedent in Islamic law has not attracted serious attention of
modern scholars as such. In general, there are several books regarding qa╔┐’
(judgeship) known as Adab al-Q┐╔┘.1 Two early books are of great help in
understanding the institution of qa╔┐’ and the work of q┐╔┘s in the Umayyad
and early Abbasid periods. These are Akhb┐r al-Qu╔┐h by Ab┴ Bakr
Arabic text of the letter see, Ab┴ Bakr Mu╒ammad b. Khalaf b. ╓ayy┐n Wak┘‘, Akhb┐r al-
Qu╔┐h, ed. ‘Abd al-‘Az┘z Mu╖═af┐ al-Mar┐gh┘, 3 vols. (Cairo: Ma═ba‘at al-Istiq┐mah, 1947–50), 1:
71–72; for its English translation see, ‘Al┐’ al-D┘n Ab┴ Bakr al-K┐s┐n┘, The Unprecedented
Analytical Arrangement of Islamic Laws, trans. Imran A. K. Nyazee (Islamabad: Advanced Legal
Studies Institute, 2007), 58. The contents of a separate letter by ‘Umar to Mu‘┐dh b. Jabal
(d. 18/639) are identical to the one above. See, Shams al-D┘n Mu╒ammad b. Ab┘ Bakr Ibn
Qayyim al-Jawziyyah, I‘lam al-Muwaqqi‘┘n ‘an Rabb al-‘└lam┘n, ed. Mu╒ammad Mun┘r al-
Dimashq┘ (Cairo: Id┐rat al-║ib┐‘ah al-Mun┘riyyah, n.d.), 1:85; and Ab┴ ’l-╓asan ‘Al┘ b.
Mu╒ammad al-M┐ward┘, Kit┐b al-A╒k┐m al-Sul═┐niyyah (Cairo: Ma═ba‘at al-Sa‘┐dah, n.d.), 72.
1
The genre of literature known as Adab al-Q┐╔┘, literally, “the etiquette of the judge,” deals
with qa╔┐’ and procedural laws of qa╔┐’. Adab al-Q┐╔┘ is similar in certain respects to the
Pakistani “Etiquette of Bar and Profession.”
PRECEDENT IN ISLAMIC LAW WITH SPECIAL REFERENCE TO THE FEDERAL SHARIAT COURT
447
Mu╒ammad b. Khalaf Wak┘‘ (d. 306/916), a q┐╔┘ in Ahw┐z (Persia),2 and Kit┐b
al-Wul┐h wa ’l-Qu╔┐h by Ab┴ ‘Umar Mu╒ammad b. Y┴suf al-Kind┘
(d. 350/961).3 The book of Wak┘‘ aims to cover all the territories of the
‘Abbasid caliphate and includes references to the judgments of qa╔┘s, their
poetry, ╓ad┘th reports and juristic opinions. He wrote on judicial practice in
the various cities from the days of the Prophet (peace be on him) until his own
time.4 He provides information about q┐╔┘s in Makkah, Mad┘nah, ║┐’if,
Ba╖rah, and the cities of Syria, Africa, Iraq and Persia. Kind ┘’s book, on the
other hand, describes the biographies of the governors as well as of q┐╔┘s as
well as their judgments in Egypt. 5 However, these and other Adab al-Q┐╔┘
books were principally guides for q┐╔┘s (judges). These books are not about
actual judicial practice and do not offer anything about the status of precedent
in Islamic law. According to Émile Tyan, these writings describe the ideal
rather than the actual practice of the Muslim courts. 6 A study of 19 cases of
mat┐‘ (gift)7 cited by Khalid Masud from the two books shows that the judges
whose decisions are analysed neither referred to their previous decisions nor
considered themselves bound by them in their later decisions. 8
There are separate treatises on Adab al-Q┐╔┘ 9 and the books on fiqh also
devote a chapter to adab al-q┐╔┘. ╓┐jj┘ Khal┘fah (d. 1067/1657) mentions at
2
Ab┴ Bakr Mu╒ammad b. Khalaf Wak┘‘, Akhb┐r al-Qu╔┐h, ed. ‘Abd al-‘Az┘z Mu╖═af┐ al-
Mar┐gh┘, 3 vols. (Cairo: Ma═ba‘at al-Istiq┐mah, 1947–1950).
3
Ab┴ ‘Umar Mu╒ammad b. Y┴suf al-Kind┘, Kit┐b al-Wul┐h wa ’l-Qu╔┐h, ed. Rhuvon Guest
(Beirut: Ma═ba‘at al-└b┐’ al-Yas┴‘┘yy┘n, 1908).
4
See, Wak┘‘, Akhb┐r, 1: 4–5.
5
Muhammad Khalid Masud has analysed nineteen judgments by different q┐╔┘s on mat┐‘
reported in the above two books. See, Muhammad Khalid Masud, “The Award of Mat┐‘ in the
Early Muslim Courts” in Muhammad K. Masud, R. Peters, and David S. Powers, eds. Dispensing
Justice in Islam: Qadis and their Judgments (Leiden/Boston: Brill, 2006), 353–370.
6
See, Émile Tyan, Histoire de l’organisation judiciaire en pays d’Islam, II edition (Leiden: E.J.
Brill, 1960), 9.
7
Mat┐‘ is a gift that is given by a husband to his estranged wife upon his divorcing her. Mat┐‘ is
unknown in Pakistani law but is known as post-divorce maintenance in India where it has been
the subject of conflicting court rulings, state legislation and heated political debates. For an
interesting discussion of mat┐‘, see, Tahir Mahmood, The Muslim Law of India, 3rd edn. (Delhi:
Butterworths, 2002), 117–125; Beauty Banday, “Maintenance of Muslim Divocee: An Analysis
of Wakfs Role in India,” Kashmir University Law Review, XI (2004), 170–187. Also see, Mohd
Azam Khan v. Shah Bano Begum, AIR 1985 SC 362; Danial Latifi v. Union of India (2001), 7 SCC
740.
8
See, Masud, “The Award of Mat┐‘ in The Early Muslim Courts,” 349–381.
9
According to Far╒┐t Ziy┐dah, Ab┴ Y┴suf Ya‘q┴b b. Ibr┐h┘m (d. 182/798) wrote the first Adab
al-Q┐╔┘ treatise. See, Ab┴ Bakr A╒mad b. ‘Amr al-Kha╖╖┐f, Kit┐b Adab al-Q┐╔┘, with the
commentary of A╒mad b. ‘Al┘ al-R┐z┘ al-Ja╖╖┐╖, ed. and Intro. Far╒┐t Ziy┐dah (Cairo: American
University Press, 1978).
448 MUHAMMAD MUNIR
least five books on Adab al-Q┐╔┘ by ╓anaf┘ jurists and thirteen by Sh┐fi‘┘s.10
The period between 1000 CE and 1500 CE is not well documented and those
interested in this period have to rely on such sources as fat┐w┐ and manuals of
legal formularies (wath┐’iq). For example, D┘w┐n al-A╒k┐m al-Kubr┐, compiled
by the Q┐╔┘ Ab┴ ’l-A╖bagh ‘├s┐ ibn Sahl al-Asad┘ (d. 485/1093)11 and Madh┐hib
al-╓ukk┐m f┘ Naw┐zil al-A╒k┐m by Mu╒ammad b. ‘Iy┐╔ (d. 574/1179).12 This
book was intended to serve as a textbook for the training of judges and muft┘s
in al-Andalus. A comprehensive study of the institution of qa╔┐’ and the
judgments of various q┐╔┘s from the rise of Islam to modern times is
Dispensing Justice in Islam,13 which is a collective work.
A very good source for the Sultanate and the Mughal legal systems in
India is The Administration of Justice in Medieval India by Muhammad Basheer
Ahmad.14 Although the book was published quite a while ago, its arrangement
as well as the author’s clarity of thought provide sufficient information as well
as impetus for further research. The book also has an excellent bibliography
for further research in the field. The Administration of the Mughal Empire by
Ishtiaq Hussain Qureshi 15 also provides some unbiased information regarding
the Mughal judicial system. However, none of these books has anything to say
on the status of precedent in Islam. The only manuscript with details of cases
and judgments is B┐qiy┐t al-╗┐li╒┐t, which contains fifty judgments during the
period 1550–1850 CE.16
10
See, ╓┐jj┘ Khal┘fah, Kit┐b Kashf al-╙un┴n (Istanbul: D┐r al-Sa‘┐dah, 1893), 1: 22–23. Of the
numerous books in this genre, the most popular are: Ab┴ ’l-╓asan ‘Al┘ b. Mu╒ammad al-
M┐ward┘, Adab al-Q┐╔┘; Ibr┐h┘m b. ‘Abd All┐h Ibn Ab┘ ’l-Damm, Kit┐b Adab al-Qa╔┐’; Ibrah┘m
b. ‘Al┘ Ibn Far╒┴n, Tab╖irat al-╓ukk┐m f┘ U╖┴l al-Aq╔iyah wa Man┐hij al-A╒k┐m; and Ab┴ ’l-
╓asan ‘Al┘ b. Khal┘l al-║ar┐bulus┘ (d. 844/1440), Mu‘┘n al-╓ukk┐m f┘ m┐ Yataraddad bayn al-
Kha╖mayn min al-A╒k┐m.
11
Q┐╔┘ Ab┴ ’l-A╖bagh ‘├s┐ ibn Sahl al-Asad┘, D┘w┐n al-A╒k┐m al-Kubr┐, ed. Ya╒y┐ Mur┐d
(Cairo: D┐r al-╓ad┘th, 2007). This work has been analysed by Müller. See, Christian Müller,
“Administrative Tradition and Civil Jurisdiction of the Cordoban ╗┐╒ib al-A╒k┐m” (I), al-
Qantara, 21 (2000), 57–84 and his “Judging with God’s Law on Earth: Judicial Powers of the
Q┐╔┘ al-Jam┐‘ah of Cordoba in the Fifth/Eleventh Century,” Islamic Law and Society, 7 (2000),
159–86.
12
Mu╒ammad b. ‘Iy┐╔, Madh┐hib al-╓ukk┐m f┘ Naw┐zil al-A╒k┐m, ed. M. Bencherifa (Beirut:
N.p., 1989). Serrano has examined this work. See, Delfina Serrano, “Legal Practice in an
Andalus-Maghribi Source from the Twelfth Century CE: The Madh┐hib al-╓ukk┐m f┘ N┐wazil
al-A╒k┐m,” Islamic Law and Society, 7 (2000), 187–234.
13
M. K. Masud, et al., eds. Dispensing Justice in Islam.
14
Muhammad Basheer Ahmad, The Administration of Justice in Medieval India (Aligarh: The
Aligarh Historical Research Institute, 1941).
15
I. H. Qureshi, The Administration of the Mughal Empire (New Delhi: Atlantic Publishers,
1990).
16
See, M. Basheer Ahmad, The Administration of Justice, 37.
449
M. P. Jain’s Outlines of Indian Legal History,17 and V. D. Kulshreshtha’s

Landmarks in Indian Legal and Constitutional History18 provide useful
information about the judicial legal system of the East India Company.
Although the sixth edition of M. P. Jain’s book was published in 2006, it does
not have any chapter on precedent as it evolved in the judicial practice of the
East India Company. 19
Martin Lau provides a very good account of the Pakistani legal system in
his several articles most of which, with some modifications, have been put
together in his book, The Role of Islam in the Legal System of Pakistan.20 On the
operation of precedent in Pakistan, Martin Lau’s article is a starter. 21 Although
two articles have been written specifically on the topic of precedent in Islamic
law: one by Mu╒ammad Mu═┘‘ al-Ra╒m┐n,22 and the other by ‘Abd al-‘Az┘z
Sa‘d al-Dagh┘sar,23 both authors fail to appreciate the complicated system of
precedent in Islamic law. For a better understanding of this topic one needs to
first comprehend precedent in common law and then undertake its study
under Islamic law. Unfortunately, all the above sources offer no or little help
as far as the status of precedent in Islamic law is concerned. Wael B. Hallaq
offers a very good assessment of the role played by the doctrine of precedent
in the Indian legal system of the 19th century. 24 However, the one author who
knows the intricacies of Islamic law and applies the same to our legal system is
undoubtedly Imran A. K. Nyazee, whose book Islamic Jurisprudence25 is a
must read to understand the very nature and system of Islamic law and its
principles. The book, however, offers only some information on the status of
17
M. P. Jain, Outlines of Indian Legal History (Bombay: Tripathy, 1966).
18
V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, ed. B. M. Gandhi,
5th edn. (Lucknow: Eastern Book Co., 2005).
19
For a detailed study of the Mughal justice system, see my, “Precedent in Pakistani Legal
System,” unpublished doctoral dissertation submitted to the Faculty of Law, University of
Karachi, November, 2008, 22–68.
20
Martin Lau, The Role of Islam in the Legal System of Pakistan (Leiden/Boston: Martinus Nijhoff
Publishers, 2006).
21
Martin Lau, “Introduction to the Pakistani Legal System, with Special Reference to the Law
of Contract,” Yearbook of Islamic and Middle Eastern Law, 1 (1994), 3–28, especially 3–12.
22
See, Mu╒ammad Mu═┘‘ al-Ra╒m┐n, “Ad┐lat┘ Na╘┐’ir k┘ Shar‘┘ ╓aythiyyat,” Fikr-o Na╘ar, 40: 2
(2002), 37–72.
23
See, ‘Abd al-‘Az┘z Sa‘d al-Dagh┘sar, “╓ujjiyyat al-Saw┐biq al-Q┐n┴niyyah” (The Authority of
Legal Precedents), al-‘Adl, 34 (1428 AH), 174–200. This article is more about the practice in Saudi
Arabia. The author opines that it was not required to follow the opinions of fuqah┐’.
24
See, Wael B. Hallaq, “What is Shari‘a?,” Yearbook of Islamic and Middle Eastern Law, 12 (2005–
2006), 173–176.
25
Imran Ahsan Khan Nyazee, Islamic Jurisprudence (Islamabad: IIIT & Islamic Research
Institute, 2000).
450 MUHAMMAD MUNIR
precedent in Islamic law. In the lines below, I will either build on his
conclusions or differ a little bit from the same.
The Place of Islamic Legal Principles in Pakistani Legal System

(A) Background to the Pakistani Legal System 26
Before explaining the status of Islamic legal principles in the Pakistani legal
system it seems appropriate to briefly discuss the Pakistani legal system itself.
The British East India Company which came to India for trade in 1604
established itself initially in three Presidency towns — Calcutta, Madras and
Bombay. The Company acquired authority over revenue collection of Bengal
in 1765 and extended its control over the administration of justice. Since
Bengal remained under the Mughal sovereignty the legal system was essentially
Islamic and based upon the ╓anaf┘ law. According to the terms of the treaty
with the Mughal Empire in 1615 the British could not change the position of
the Shar┘‘ah as the law of the land. The most conspicuous feature of the 18th
century Indian legal history is that the Shar┘‘ah was administered by British
judges sitting on the Shar┘‘ah courts. The Regulations of 1793 modified the law
applicable to Muslims and Hindus. Previously, the Qur’ ┐n and the Shaster
were applicable to Muslims and Hindus, respectively. In 1793, the laws
applicable to both the communities were ‘Mohammadan Law’ for the
Muslims and ‘Hindu Law’ for the Hindus. From the very beginning the
Company’s Courts were administering Muslim and Hindu Law with the help
of muft┘s, mavlav┘s (experts of Islamic law) and pundits (scholars versed in
Hindu law).
Court hierarchy and law reporting started facilitating the doctrine of
precedent. Moreover, the Mayor’s Court in Madras in 1687 held that all causes
shall be adjudged according to ‘equity and good conscience.’ 27 The same was
reasserted in the Charter of 1726 and the later Charters, Regulations and Acts.
The Privy Council held in 1886 that the formulas ‘justice, equity and good
conscience’ or ‘justice and right’ implied the application of English law, if
found applicable to Indian society and its circumstances. 28 In the sphere of
family law, the British judges closely followed the interpretations of the
classical fiqh books, which they consulted in translation. These judges,
however, deviated a great deal from the Shar┘‘ah in the name of ‘justice, equity
26
For details see my, “The Administration of Justice under Akbar, Jeh┐ng┘r and Awrangz╚b: An
Overview,” Hamdard Historicus, forthcoming.
27
See, J. D. M. Derrett, “Justice, Equity and Good Conscience” in J. N. D. Anderson, ed.
Changing Law in Developing Countries (London: Allen & Unwin, 1963), 114–153.
28
Waghela Rajsanji v. Shekh Mashidin [1886–1887] 14 L.R.I.A. 89.
451
and good conscience.’ In 1857 the Company was replaced by the Crown and
most of the laws that are still applicable in India, Bangladesh and Pakistan
were codified after 1857.
The theoretical primacy of the Shar┘‘ah in criminal cases was abolished by
the introduction of the Indian Penal Code in 1861. In 1864 the position of the
native law officers was abolished, and, henceforth, British judges had to find
the relevant rules of the Shar┘‘ah themselves. In cases relating to family law the
civil courts enforced both Sunn ┘ and Sh┘‘┘ doctrines.
Probably the introduction of the English doctrine of precedent into India
was the most important factor in shaping the sources of law in India, Pakistan
and Bangladesh, which was a more rigidifying process by the Anglo-Indian
court, a system that, for many good reasons, could not evolve in Islamic law.
In 1831 Dorin advocated that statutory force should be accorded to the
English doctrine of precedent in India so that judgments of a court shall be
considered as binding upon itself and upon courts lower down in the
hierarchy. 29 The era of authentic law reporting began with the Indian Law
Reports Act, 1875. Thus, the two indispensable requirements for the doctrine
of precedent — hierarchy of courts and the emergence of authentic law
reporting — were fulfilled in 1875. Hallaq argues that the doctrine of
precedent deprived the Muslim q┐╔┘ of a wide array of opinions to choose
from in light of the facts presented in the case. Once a judge was bound by a
previous decision, there was no place for the Muslim muft ┘s-cum-author-jurists
in the judicial process. Subsequently, they disappeared from the legal as well as
intellectual life of the jural community. Once the Anglo-Muhammadan law
was enshrined in a doctrine of binding precedent the sources of legal authority
were transformed.30 The implementation of the ╓anaf┘ substantive law by
British judges resulted in the emergence of a novel and unique form of Islamic
law, called Anglo-Muhammadan Law,31 which to this day remains enforced in
India, Bangladesh and Pakistan. The distinctive feature of the judicial
organization of these three countries is that Islamic law is applied by national,
regular courts and not by specialized Shar┘‘ah courts. It is this permanent
transformation that we are dealing with. Although the colonialists are long
gone, yet the transformation they made in the legal system proved lasting.
29
See, A. Lakshminath, Precedent in Indian Law, 2nd edn. (Lucknow: Eastern Book Company,
2005), 15; M. P. Jain, Outlines of Indian Legal History (Bombay: N. M. Tripathi Private Ltd.,
1966), 726; and Kulshreshtha, Landmarks, 493.
30
Hallaq, “What is Shari‘a?,” 176; also see, Scot Alan Kugle, “Framed, Blamed and Renamed:
The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies, 35:2
(May, 2001), 295.
31
For the different uses of this term, see my, “Marriage in Islam: A Civil Contract or a
Sacrosanct?,” Hamdard Islamicus, XXXI:1 (2008), 82–83.
452 MUHAMMAD MUNIR
Precedent, therefore, played a significant role in the shaping of the legal

systems to come in India, Pakistan and Bangladesh because the decisions of the
English judges at the time were sometimes contrary to Islamic law. However,
they remained binding precedents for the lower courts for generations. 32
(B) The Place of Islamic Legal Principles in Pakistani Legal System

To determine the place of Islamic legal principles in the legal system of
Pakistan, we have to look briefly at the status of Islam in its Constitution,
other statutes and especially case law. As mentioned above, the decisions of the
superior courts involving questions of Islamic law before the establishment of
Pakistan were considered as sources of law because of the doctrine of
precedent. Pakistan adopted the Government of India Act 1935 section 212 of
which laid down that the decisions of the Privy Council and the Federal Court
would be binding upon the courts in India. The Privy Council, however, was
not bound by its own previous decisions. Pakistan adopted the pre-
independence Anglo-Indian law since its independence in 1947. In Pakistan the
Federal Court was replaced by the Supreme Court on March 24, 1956 and in
India on January 26, 1950. All Pakistani Constitutions from 1956 to 1973
contained provisions regarding the continuation of such laws. Article 268(1) of
the present 1973 Constitution provides safeguard to such laws. Although
Pakistan and India have been independent states since 1947 and are governed
by laws made by their respective legislatures, yet the operation of the doctrine
of precedent as was practiced by the Anglo-Indian courts remains largely
unchanged. The bulk of Pakistani law is still Anglo-Indian although Islamic
law has also become a source of law.
The 1973 Constitution declares Islam as the state religion 33 although it did
not provide any definition of Islam. 34 The most significant yet controversial
document regarding the place of Islam in Pakistani law is the Objectives
Resolution passed by the first Constituent Assembly of Pakistan in 1949. The
Resolution only had a guiding character when it was made, with slight
changes, preamble to the 1956, 1962 and the 1973 Constitutions. However, in
1985 it was made an integral and operative part of the Constitution by
32
An example of a concept that was the invention of the Anglo-Indian judges and that still pre-
occupies the minds of judges in India, Pakistan and Bangladesh is the notion that marriage in
Islam is a ‘civil contract.’ See, Abdul Qadir v. Salima (1886) 8 All 149 (FB). For details see, my,
“Marriage in Islam: A Civil Contract or a Sacrosanct?,” 77–84.
33
See, Article 2 of The Constitution of Islamic Republic of Pakistan (Islamabad: Ministry of Law
and Justice, 2008).
34
There are other Articles of 1973 Constitution such as Articles 227–231 regarding Islamic
provisions of the Constitution, but they are not significant.
453
inserting it as Article 2-A in the Constitution. 35 Since the late 1960s, in any
case, the Pakistani courts have increasingly relied on and recognised the
principles of Islamic law. The most noteworthy example of this reliance is
Asma Jilani v. The Government of the Punjab (1972)36 which recognised Islam as
the Grundnorm37 of the Pakistani legal system. 38 Chief Justice Hamoodur
Rahman referred to the first paragraph of the Objectives Resolution and said:
In any event, if a Grundnorm is necessary for us I do not have to look to the
Western legal theorists to discover one. Our own Grundnorm is enshrined in our
own doctrine that the legal sovereignty over the entire universe belongs to
Almighty Allah alone, and the authority exercisable by the people within the
limits prescribed by him a sacred trust. This is an immutable and unalterable
norm which was clearly accepted in the Objectives Resolution passed by the
Constituent Assembly of Pakistan on the 7th of March 1949. This Resolution has
been described by Mr. Brohi as the “corner stone of Pakistan’s legal edifice” … it
is one of the fundamental principles enshrined in the Qur’an. 39
Lau argues that Justice Rahman’s reliance on Islamic law is significant. “In
spite of the fact that he [Justice Rahman] began his deliberations about
Pakistan’s Grundnorm with an ‘if,’ he nevertheless formulated in very certain
terms a constitutional theory in which basic principles of Islamic law were
‘immutable’ and ‘unalterable’ norms.” 40 Justice Sajjad Ahmad, another
35
Revival of the Constitution of 1973 Order, 1985 (P.O. No. 14 of 1985).
36
PLD 1972 SC 139.
37
The Grundnorm or basic norm, Kelsen says, is formulated as follows: “Coercive acts ought to
be performed under the conditions and in the manner which the historically first constitution,
and the norms created according to it, prescribe. (In short, one ought to behave as the
constitution prescribes).” Hans Kelsen, The Pure Theory of Law, trans. M. Knight (Berkeley:
University of California Press, 1967), 201. There are two important concepts in Kelsen’s pure
theory of law: the concept of a basic norm and the concept of a chain of validity. Kelsen says,
“To the question why this individual norm is valid as part of a definite legal order, the answer
is: because it has been created in conformity with a criminal statute. This statute, finally,
receives its validity from the constitution, since it has been established by the competent organ
in the way the constitution prescribes. If we ask why the constitution is valid, perhaps we come
upon an older constitution. Ultimately we reach some constitution that is the first historically
and that was laid down by an individual usurper or by some kind of assembly. … It is postulated
that one ought to behave as the individual, or the individuals, who laid down the first
constitution have ordained. This is the basic norm of the legal order under consideration.” Hans
Kelsen, General Theory of Law and State (New York: Russell & Russell, 1945), 115.
38
For a discussion of Grundnorm in the Pakistani legal system see, Ahmer Fazeel, The
Constitution of the Islamic Republic of Pakistan (Karachi: Pakistan Law House, 1997), 18–24. For
criticism of Kelsen’s theory see, Joseph Raz, The Concept of a Legal System: An Introduction to the
Theory of a Legal System (Oxford: Clarendon Press, 1980), 93–120.
39
Asma Jilani v. The Government of the Punjab, PLD 1972 SC 139 at 182.
40
See, Lau, The Role of Islam, 15.
454 MUHAMMAD MUNIR
member of the bench, opined that the Objectives Resolution “embodies the
spirit and the fundamental norms of the constitutional concepts of Pakistan.” 41
However, for Justice Yaqub Ali the Grundnorm was democracy, 42 whereas
Justice Salahuddin Ahmed chose to ignore Islam as the Grundnorm. The
overall effect of Asma Jilani case was that the Supreme Court strongly rejected
Chief Justice Muhammad Munir’s radical positivism in Dosso’s case (1958) and
his reliance on Kelsen’s theory. 43 In Ziaur Rehman v. The State (1972)44 Justice
Afzal Zullah of the Lahore High Court held that the Objectives Resolution
was “a supra Constitutional Instrument” that “is so fundamental and contains
such mandates that it cannot at all be repealed or abrogated and is permanent
for all times to come.”45 Justice A. R. Sheikh held that although the Objectives
Resolution was the Grundnorm, it could not be used to test the vires of the
constitution itself.46 Justice M. A. Cheema ruled that the Objectives
Resolution could not be used to determine the vires of any law, let alone the
provisions of the Constitution itself. 47 Justice Sajjad Ahmad held that Islam, as
expressed in the Objectives Resolution, constituted the Grundnorm in
Pakistan.48
In Hussain Naqi v. D. M. Lahore (1973)49 Justice Muhammad Iqbal of the
Lahore High Court ruled that the Objectives Resolution is only a guideline
for the framing of the Constitution and not the Grundnorm.50 The Supreme
Court, while deciding Ziaur Rehman v. State (1972),51 put an end to the debate
whether Islamic law and especially the Objectives Resolution formed the
Grundnorm for Pakistan. Chief Justice Hamoodur Rahman rejected the
elevation of the Objectives Resolution to the status of a supra constitutional
instrument because it was “not incorporated in the Constitution.” 52 In Darvesh
M. Arbey v. Federation of Pakistan (1980)53 Justice Kadri stated that the basic
structure of Pakistan was the two nation theory and the ideology of Pakistan.
In his opinion the source of the basic structure was the Objectives Resolution.
41
Asma Jilani v. The Government of the Punjab, PLD 1972 SC 139 at 258.
42
Ibid., 237.
43
The State v. Dosso, PLD 1958 SC 533.
44
PLD 1972 Lahore 382. The full decision was reported 12 years after the judgment was given
by a larger bench of the Lahore Court as Ziaur Rahman v. The State, PLD 1986 Lah 428.
45
Ziaur Rehman v. The State, PLD 1972 Lahore 382 at 390.
46
Ibid., 486.
47
Ibid., 518.
48
Ibid., 602.
49
PLD 1973 Lahore 164.
50
Ibid., 175.
51
PLD 1973 SC 49.
52
Ibid., 71.
53
PLD 1980 Lahore 206.
455
Lau argues that Justice Kadri’s assertion only amounts to Islam being an
additional source of law. 54 According to Justice Zakiuddin Patel, “the basic
structure, framework and essential features have been fully given in the
preamble of the Constitution, which is an integral part thereof … and any
amendment to change them would be void.” 55 In Begum Nusrat Bhutto v. Chief
of the Army Staff (1977)56 the Supreme Court rejected the view that the
Objectives Resolution was the Grundnorm of Pakistan.57 Justice Cheema
expressed the view that Islam was the ideological foundation of Pakistan 58 and
Justice Akram ruled that the ideology of Pakistan “is firmly rooted in the
Objectives Resolution with emphasis on Islamic laws and concept of morality.
In our way of life we do not and cannot divorce morality from law.” 59 The
Supreme Court in Islamic Republic of Pakistan v. Abdul Wali Khan (1976)60
visited the basic structure doctrine. Justice Gul Muhammad ruled that the
supreme authority in Pakistan vests in the Holy Qur’ ┐n.61
Since the incorporation of the Objectives Resolution in the Constitution
in 1985 and till 1992 there have been at least 30 cases of High Courts or the
Federal Shariat Court involving the consideration of Article 2-A. 62 The most
noticeable cases were those involving interest or certain provisions of the
Muslim Family Law Ordinance 1961. In Muhammad Bachal Memon v.
Governemnt of Sind (1987) 63 Justice Naimuddin — Chief Justice of the Sindh
High Court — rejected the view that the Constitution (Eighth Amendment),
54
Lau, The Role of Islam, 23.
55
PLD 1980 Lahore 206 at 297. Justice Patel relied on the Indian cases of Golak Nath v. State of
Punjab, AIR 1967 SC 1643 and Kesvavanda v. Baharati, AIR 1973 SC 1461 to resurrect the basic
structure doctrine. He gave examples of constitutional amendments which would amount to a
violation of the basic doctrine: the deletion of Article 2 of the 1973 Constitution which states
that Islam shall be the state religion of Pakistan, or a declaration that Pakistan was to be a
secular state, or an attempt to change the democratic or federal character of the state would
undermine the basic structure. The decision was reported three years after the judgment was
given.
56
PLD 1977 SC 657.
Ibid., 747; per Justice Qaiser Khan. The Supreme Court validated the action of General Zia-ul-
57
Haq by applying the doctrine of necessity.

58
Ibid., 724.
59
Ibid., 733.
60
PLD 1976 SC 57.
61
Ibid., 176.
62
For a study of the effects of Article 2-A and case law see, A. M. Serajuddin, Shari‘a Law and
Society: Tradition and Change in South Asia (Karachi: Oxford University Press, 2001), 252–260;
David Pearl & Werner Menski, Muslim Family Law (London: Sweet & Maxwell, 1998), 360–373.
63
PLD 1987 Kar 296.
456 MUHAMMAD MUNIR
Act 1985, which inter alia validated all actions taken during General Zia-ul-
Haq’s reign vide Article 270A, violated Article 2-A. 64
It is worth noting here that initially fiscal laws were excluded from the
jurisdiction of the FSC. Justice Tanzilur Rahman expounded the theory that
the jurisdiction of the High Courts and the Supreme Court has been enhanced
by Article 2-A. In the Bank of Oman Ltd v. East Trading Co. Ltd (1987)65 he
ruled that “Any provision of the Constitution or law, found repugnant to
them [the Objectives Resolution by virtue of Article 2-A], may be declared by
a superior Court as void.” 66 In Irshad H. Khan v. Perveen Ijaz (1987)67 he opined
that Article 2-A controlled the rest of the Constitution. 68 In Mirza Qamar
Raza v. Tahira Begum (1988)69 he ruled that section 7 of the Muslim Family
Law Ordinance 1961 was repugnant to the injunctions of Islam by virtue of
Article 2-A.70
Another judge of the Sindh High Court who resorted to 2-A in his
decisions was Justice Wajihuddin Ahmad. These cases were Aijaz Haroon v.
Inam Durrani (1989),71 Tyeb v. Alpha Insurance Co. Ltd (1990)72 Skina Bibi v.
Federation of Pakistan (1992)73 and Farhat Jalil v. Province of Sind (1990).74
There are a number of other cases in which judges resorted to or discussed
their view on Article 2-A but the Supreme Court finally settled the issue in
Hakim Khan v. Government of Pakistan (1992)75 when it ruled that the order
issued by the President under Article 45 of the 1973 Constitution, which
allowed the President to commute sentences, was not repugnant to Islam. 76
64
Ibid., 328–9.
65
PLD 1987 Kar 404.
66
Ibid., 445. He found section 58 of the Transfer of Property Act 1882 to be against the
injunction of Islam but was unable to declare it void because he was bound by the FSC’s
decision which had already declared the said section to be in accordance with Islam. See,
Muhammad Sadiq Khan v. Federation of Pakistan, PLD 1982 FSC 237.
67
PLD 1987 Kar 466.
68
In his view it controlled Article 189 of the Constitution regarding the binding nature of a
Supreme Court’s decision on the High Court. He held that he was not bound by the Supreme
Court because Article 189 was against Article 2-A.
69
PLD 1988 Kar 169.
70
Section 7 of the said Ordinance provides that upon the pronouncement of ═al┐q by the
husband he must give a notice of it to the Chairman of the Union Council and that ═al┐q will be
effective 90 days after the receipt of such notice by the Chairman.
71
PLD 1989 Kar 304.
72
1990 CLC 428.
73
PLD 1992 Lahore 99.
74
PLD 1990 Kar 342.
75
PLD 1992 SC 595.
76
The Supreme Court found that the death sentences had been awarded by way of ta‘z┘r and not
as ╒add punishments and that consequently the President was within his rights, even under
457
According to Justice Nasim Hasan Shah, the Objectives Resolution was equal
in weight and status to the provisions of the Constitution and could not annul
any existing constitutional provisions. 77 Hakim Khan’s case ended the drive of
a handful of judges to Islamise the laws through the judiciary but the judicial
debate about the basic structure would continue. In Mahmood Khan Achakazi
v. The Federation of Pakistan (1997)78 the Supreme Court ruled that the legal
system in Pakistan has a basic structure which cannot be changed. Chief
Justice Sajjad Ali Shah opined that the Objectives Resolution “in the shape of
Article 2-A when read with other provisions of the Constitution reflects
salient features of the Constitution highlighting federalism, parliamentary
form of Government blended with Islamic provisions.” 79 He held that the
power to amend the Constitution did not extend to amending its salient
features. However, Justices Saleem Akhtar and Raja Afrasiab Khan were
reluctant to accept the Objectives Resolution as the basic structure for
Pakistan.80 In Zafar Ali Shah v. Pervez Musharraf (2000)81 the Supreme Court
ruled that the basic features of the Constitution, i.e. independence of judiciary,
federalism and parliamentary form of government blended with Islamic
Provisions cannot be altered by the Parliament. 82 Thus, the judiciary has
reduced what it earlier called the Grundnorm or the basic structure for
Pakistan to the basic features of the 1973 Constitution.
However, while Islamisation of laws through the High Courts and the
Supreme Court may be over, but the creation of FSC was meant for
Islamisation, FSC being the constitutional court to enunciate Islamic laws. The
impact of some of the rulings of the FSC is further examined below.
The practice of precedent in Pakistan reveals that the lower Courts are
bound by the decisions of the higher Courts but the higher Courts are free to
resort to ijtih┐d for deriving new rules from the Qur’┐n, the Sunnah, ijm┐‘,
qiy┐s (analogy), ma╖la╒ah, custom and other secondary sources of Islamic law.
In resorting to ijtih┐d, Courts are not required to confine to a particular school
Islamic law, to commute them to life imprisonment without the consent of the heirs of the
deceased. In other words, the Supreme Court meant siy┐sah (the administration of justice
according to the Shar┘‘ah) without naming it. The Supreme Court also discussed siy┐sah
implicitly in Sakhawat v. The State, 2001 SCMR 244.
77
Hakim Khan v Government of Pakistan, PLD 1992 SC 595, at 617.
78
PLD 1997 SC 426.
79
Ibid., 458.
80
In Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan , PLD 1998 SC 1263, Raja
Afrasiab Khan upheld the basic structure doctrine (At 1423). He was also supported by Justice
Mamoon Kazi.
81
PLD 2000 SC 869.
82
Ibid., 1281.
458 MUHAMMAD MUNIR
of law. As I have mentioned elsewhere, 83 in Pakistan the Enforcement of

Shari‘ah Act, 1991, section 2 mentions that ‘Shari‘ah’ means the injunctions of
Islam as laid down in the Holy Qur’┐n and [the] Sunnah. The explanation
provided to section 2 states that:
While interpreting and explaining the Shari‘ah the recognized principles of

interpretation and explanation of the Holy Qur’┐n and Sunnah shall be followed
and the expositions and opinions of recognized jurists of Islam belonging to
prevalent Islamic schools of jurisprudence may be taken into consideration. 84
Tahir Mahmood points out that it is unclear what is meant by the word
“prevalent.” Does it mean prevalent in Pakistan or prevalent in the whole
world?85 This provision allows judges to resort to ijtih┐d and not stick to just
one school of thought. Courts in Pakistan are yet to use this freedom. The net
result of the Act is that statutes shall be interpreted in the light of Islamic
law — a principle first developed by Justice Afzal Zullah. 86 Section 3(1) the
Enforcement of Shariah Act, 1991 has declared the Holy Qur’ ┐n and the
Sunnah as the supreme law of the country. However, the bulk of the Anglo-
Indian law is still applicable in Pakistan.
Stare Decisis in Pakistani Law with Special Reference to The

Federal Shariat Court ( FSC)
(A) Stare Decisis in Pakistani Law87
As stated above, Pakistan inherited the Government of India Act 1935 section
212 of which expressly mentioned that the law declared by the Privy Council
as well as the Federal Court is binding on all courts in the territory of India. 88
Pakistan put this provision, with slight changes, in the 1956 89 and 196290
83
See, my, “Stipulations in a Muslim Marriage Contract with Special Reference to Talaq Al-
Tafwid Provisions in Pakistan,” Yearbook of Islamic and Middle Eastern Law, 12 (2005–2006),
248.
84
See, section 2 of the Shari‘ah Enforcement Act, 1991 (Act X of 1991).
85
See, Tahir Mahmood, “Legislation and Case Law in Pakistan, 1991–1996: Enforcement of
Shari‘ah and Appointment of Judges,” Islamic and Comparative Law Review, XV–XVI (1995–
96), 90.
86
Justice Zullah ruled in Nizam Khan v. Additional District Judge, PLD 1976 Lahore 930, that
‘justice, equity and good conscience’ meant Islamic law to the exclusion of all other laws.
87
There is no specific quality work on precedent in Pakistani law and the basis for this section is
my PhD thesis, “Precedent in Pakistani Legal System,” 207–323.
88
See, ibid., 70–71.
89
Article 163(1) of the 1956 Constitution stated that: “The law declared by the Supreme Court
shall be binding on all courts in Pakistan.” See, A. K. Brohi, Fundamental Law of Pakistan
(Karachi: Din Muhammad Press, 1958), 605.
459
Constitutions.91 In the present Constitution, by virtue of Article 189, the

decisions of the Supreme Court are binding on all other Courts in Pakistan. 92
However, the superior courts have yet to appreciate and expound the phrases
used in Article 189 such as ‘it decides a question of law,, or ‘enunciates a
principle of law,’ 93 and ‘is based upon … a principle of law.’ 94 I have concluded
in another work of mine that the over all effect of Article 189 is that only the
ratio (the reason for the decision) of the Supreme Court is binding on the
High Courts and the lower courts but not its dicta (remarks made by judges
along the way). However, in Province of the Punjab v. Dr. S. Muhammad
Bukhari (1997)95 the Supreme Court has ruled that even its dicta are binding on
the High Courts and any decision contrary to the dictum laid down by it, was
a judgment per incuriam.96 In Zaheer Behzad v. The State (2003)97 Justice Aslam
Jafri of the Sindh High Court categorically reaffirmed this principle and ruled:
There can be no two opinions that the rule laid down and the law declared by
the Supreme Court by virtue of Article 189 of the Constitution is binding on all
Courts and authorities in Pakistan. Any judgment passed by any authority or
Court contrary to the law laid down by the Supreme Court shall be a judgment
per incuriam.98
90
Article 63 of the 1962 Constitution.
91
In India Article 141 of the Constitution of 1950 retains, more or less, the wording of the
Government of India Act, 1935 when it states, “The law declared by the Supreme Court shall be
binding on all courts within the territory of India.”
92
Article 189 says, “Any decision of the Supreme Court shall, to the extent that it decides a
question of law or is based upon or enunciates a principle of law, be binding on all other Courts
in Pakistan.” Article 42 B of the Interim Constitution Act 1974 of Azad Jammu and Kashmir as
modified by Act VIII of 1976 retains the wording of Article 189 of the Pakistani Constitution in
verbatim. For the text see, Ameerullah Khan Mughal, The Judicial System in Azad Jammu and
Kashmir, 2nd edition (Mirpur: Kashmir Law House, 2006), 11.
93
A careful analysis of Article 189 of the 1973 Constitution of Pakistan reveals that if the
Supreme Court is faced with a new situation which has not happened before or on which
neither statute nor previous cases provide clear guidance, then it has to create an ‘original
precedent.’ This is clear from the phrases, ‘it decides a question of law’ (which should mean a
‘new question of law’) or ‘enunciates a principle of law.’ See, my, “Precedent in Pakistani Legal
System,” 216.
94
It would simply mean that if an earlier decision is declared to be a ‘good authority’. It may be
called a ‘declaratory precedent.’ For details see, my, “Precedent in Pakistani Legal System,” 131–
158.
95
PLD 1997 SC 351.
96
Ibid., 364–65 (I) & (J); per Justice Khalil ur Rahman Khan speaking for the four members
bench.
97
2003 YLR 1582.
98
Ibid., 1590 (B).
460 MUHAMMAD MUNIR
Both these decisions are self-contradictory and constitute very bad

precedents because the phrases ‘the law laid down by the Supreme Court,’ and
‘by virtue of Article 189’ are two different things and cannot be reconciled
with each other. The former phrase was part of the Government of India Act
1935, and the 1956 and 1962 Constitutions but is not a part of the 1973
Constitution. The phrase ‘law laid down’ is broader and also includes the
dictum whereas the text of Article 189 is narrow and refers only to the ratio.99
The former is superseded by the later yet, surprisingly, it is resorted to by our
judges.
The superior courts have established certain principles called judicial
customary principles under which a larger bench binds a smaller bench both
in the High Courts as well as the Supreme Court. In addition, the Supreme
Court and the High Courts may overrule their own previous decisions. The
Supreme Court has overruled its own decisions on many occasions. For
example, in Asma Jilani v. The Government of the Punjab (1972),100 the Supreme
Court overruled State v. Dosso (1958).101 In Bashir v. State (1991)102 the Supreme
Court overruled Javaid Shaikh v. The State (1985);103 Juma Khan v. The State
(1986);104 Mu╒ammad Ittefaq v. The State (1986)105 and Khan Zaman v. The State
(1987).106
By virtue of Article 201 of the 1973 Constitution, the decisions of a High
Court are binding on all Courts subordinate to it. 107 It would mean that only
the ratio of a High Court decision is binding and not its dictum. By virtue of
Article 203GG of the Constitution, the decisions of the FSC under its
exclusive jurisdiction are binding on all the High Courts as well as lower
Courts in Pakistan. Similarly, a larger Bench of a High Court can overrule its
own previous decisions but an equal Bench is bound by the decision of an
equal Bench. If a contrary view is to be taken, then a request will be made for
a larger Bench. This judicial principle has attained the status of ijm┐‘ (to use
the terminology of Islamic law), from which deviation is not allowed. There
are plenty of decisions on this point starting from Province of East Pakistan v.
99
For more criticism see, my, “Precedent in Pakistani Legal System,” 221.
100
PLD 1972 SC 139.
101
PLD 1958 SC 533.
102
PLD 1991 SC 1145.
103
1985 SCMR 153.
104
1986 SCMR 1753.
105
1986 SCMR 1627.
106
1987 SCMR 1382. All the cases were regarding the interpretation of Section 35(2) of the Code
of Criminal Procedure.
107
The wording of Article 189 and 201 is similar.
461
Dr. Azizul Islam (1963).108 The Shariat Appellate Bench of the Supreme Court
also overrules its own previous decisions. For example, Federation of Pakistan
v. Mst. Farishta (1981)109 was overruled by Shariat Appellate Bench in Dr.
Mahmood-ur-Rahman Faisal v. Government of Pakistan (1994).110 The net result
of the above three Articles, i.e. 189, 201 and 203GG is that precedent in
Pakistan is institutionalised and that the decisions of the higher courts,
including those involving Islamic law, are binding on courts lower in the
hierarchy and in some cases on the higher courts themselves.
(B) Stare Decisis and Federal Shariat Court

The FSC was created in 1980 111 and the powers exercised by the four Shariat
Benches in the four High Courts of the country were transferred to it. Under
Article 203D of the Constitution it was given jurisdiction to examine itself or
on the request of any citizen of Pakistan whether or “not any law or provision
of law is repugnant to the Injunctions of Islam as laid down in the Holy
Qur’┐n and the Sunnah of the Holy Prophet.” 112 It also has appellate
jurisdiction in Hudood cases decided by Sessions Courts. However, its
jurisdiction in Hudood cases is being eroded by the recently passed
enactment — The Protection of Women Act, 2006, which took some offences
of the Hudood from the Hudood Ordinances and put them in the Pakistan
Penal Code.113 The leading cases decided by the FSC and only one of its four
predecessors, i.e. the Shariat Bench of the Peshawar High Court, include Gul
Hassan Khan v. Govt. of Pakistan and another (1980),114 Naimatullah Khan v.
Government of Pakistan (1979),115 Allah Rakha v. Federation of Pakistan
(2000)116 and Mahmood-ur-Rahman Faisal v. Secretary, Ministry of Law (1992).117
108
PLD 1963 SC 296.
109
PLD 1981 SC 120.
110
PLD 1994 SC 607.
111
Vide Constitution (Amdt.) Order, 1980 (P. O. No. 1 of 1980). See, The Constitution of the
Islamic Republic of Pakistan (Islamabad: Law and Justice Division, Government of Pakistan,
2008), 108, n. 1.
112
Ibid., Article 203 D.
113
For details see, my, “Is Zin┐ bi ’l-Jabr ╓add, Ta‘z┘r or Siy┐sah Offence: A Reappraisal of the
Protection of Women Act 2006 in Pakistan,” Yearbook of Islamic and Middle Eastern Law, 14
(2007–2008), forthcoming.
114
PLD1980 Pesh 1. The Gul Hassan case effectively introduced the Islamic law of qi╖┐╖ and diyat
in Pakistan.
115
PLD 1979 Pesh 104. This case declared the right of landless tenant renting agricultural land
from his landlord to exercise a first right of pre-emption should the land be sold.
116
PLD 2000 FSC 1 in which the FSC declared sections 4, 7(3) and & 7(5) of the Muslim Family
Law Ordinance 1961 repugnant to the injunctions of Islam. The case is pending in the Shariat
Appellate Bench of the Supreme Court till the writing of this work.
462 MUHAMMAD MUNIR
These were mostly cases in which certain statutory laws were held repugnant
to Islam. In addition, the FSC has decided many cases under its appellate
jurisdiction. Significant examples include Jehan Mena v. The State (1983)118 and
Safia Bibi v. The State (1985).119 In both cases, the complainants (women) were
convicted by the lower courts in spite of being victims themselves, but were
finally acquitted by the Federal Shariat Court.
Under Article 203GG of the Constitution of Pakistan, 1973, the decisions
of the FSC, in exercise of its jurisdiction under Chapter 3 A, “shall be binding
on a High Court and on all courts subordinate to a High Court.” According
to the language of Article 203GG any decision of the FSC is binding on High
Courts as long as the decision is within its jurisdiction. Under Article 203 G,
other courts such as the High Courts and the Supreme Court cannot exercise
any power or jurisdiction regarding any matter if it falls within the exclusive
jurisdiction of the FSC. In other words, its jurisdiction is exclusive and not
shared with other constitutional courts and appeals lie against its decisions
only to the Shariat Appellate Bench of the Supreme Court. 120 The crucial
points that are necessary to discuss below are: firstly, the FSC has limited but
important jurisdiction as compared to a High Court or the Supreme Court;
secondly, decisions of the FSC are binding on the High Courts and all courts
subordinate to the High Courts; thirdly, its jurisdiction is limited but
exclusive.121 The crucial question that arises for the purpose of this work is
whether the Supreme Court (not the Shariat Appellate Bench) is bound by the
decisions of the Federal Shariat Court or not? In Zaheer-ud-Din v. The State
(1993),122 the Supreme Court decided that “[T]he findings of the Federal
Shariat Court, if the same is either not challenged in the Shariat Appellate
117
PLD 1992 FSC 1. In this case the FSC combined 115 Shariat petitions challenging a
considerable number of laws providing for the payment of interest. The Shariat Appellate
Bench of the Supreme Court upheld the decision of the FSC but several extensions were granted
to the government to adjust the country’s economic system. Finally, the then government of
Gen. Musharaff reconstituted the Shariat Appellate Bench of the Supreme Court and requested
it to review the case. The Bench suspended the case and remanded it back to the FSC.
118
PLD 1983 FSC 183.
119
PLD 1985 FSC 120.
120
The Shariat Appellate Bench of the Supreme Court has two Ulema [sic] appointed by the
President “to attend sittings of the Bench as ad hoc members thereof” working along with three
other Muslim judges of the Supreme Court. See Article 203F (3) (b) of the 1973 Constitution.
121
Masud, et al. argue that Federal Shariat Court “[A]ppears to restore special shariah
jurisdiction, this is not in fact the case; the court was created to supervise the Islamization of the
legal system, not to adjudicate disputes in accordance with the shariah.” M. Khalid Masud,
R. Peters and David S. Powers, “Q┐╔┘s and Their Courts: An Historical Survey,” in Masud, et
al. ed. Dispensing Justice in Islam, 42.
122
1993 SCMR 1718.
463
Bench of the Supreme Court or challenged, but maintained, would be binding

even on the Supreme Court.” 123 In practice, it is almost impossible to find a
decision of the FSC, declaring a piece of legislation to be against the
injunctions of Islam that is not challenged by the government in the Shariat
Appellate Bench of the Supreme Court. Secondly, as we have mentioned
above, such a matter cannot come to the Supreme Court anyway, as it has no
jurisdiction in the matter.
In Hafiz Abdul Waheed v. Mrs. Asma Jehanghir (1997),124 the Lahore High
Court, while deciding that the consent of the guardian or parents is not
required for the validity of nik┐╒, had based its decision on the Federal Shariat
Court’s decision of Mohammad Imtiaz v. The State (1981).125 Justice Ihsan ul
Haq of the Lahore High Court, in his minority speech mentioned that the
Lahore High Court is not bound by the decision of the Federal Shariat Court
which had ruled that the consent of the guardian is not essential for the
validity of nik┐╒. The majority of the High Court, however, rejected the
argument that since the FSC’s decision was delivered in the exercise of
appellate jurisdiction, it should have no binding effect for the High Courts
under 203GG. The Lahore High Court ruled that it was bound by the
decision of the FSC whether the same was given in exercise of appellate or
revisional jurisdiction.
This view was endorsed by the Supreme Court when it decided Hafiz
Abdul Waheed v. Mrs. Asma Jehangir (2004)126 on appeal. Justice Karamat Nazir
Bhandari, speaking for the Full Bench of the Supreme Court, observed that,
“The repeated pronouncements of Federal Shariat Court are required to be
followed by the High Court, and by all Courts subordinate to a High Court
by virtue of Article 203 GG.” 127 He further opined that, “The expression
“decision” in Article 203 GG will include the judgment, order or the sentence
if any passed by the Federal Shariat Court and all these will remain binding on
the High Courts and Courts subordinate to the High Courts.” 128 The FSC had
ruled in Muhammad Imtiaz v. The State (1981),129 Arif Hussain and Azra
Parveen v. The State (1982), 130 Muhammad Ramzan v. The State (1984) 131 and
123
Ibid., 1756; also see, Allah Rakha v. Federation of Pakistan, PLD 2000 FSC 1, at 29 and
Avrangzeb v. Massan, 1993 CLC 1020 at 1023 (A).
124
PLD 1997 Lah. 301.
125
PLD 1981 FSC 308.
126
Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219.
127
Ibid., at 230.
128
Ibid., at 233 (F).
129
PLD 1981 FSC 308.
130
PLD 1982 FSC 42.
131
PLD 1984 FSC 93.
464 MUHAMMAD MUNIR
Muhammad Yaqoob v. The State (1985)132 that the consent of the wal┘ is not
necessary for the validity of nik┐╒.133
In all other matters, the FSC is bound to follow the statutory law as
interpreted by the Supreme Court and the High Courts, because of Article
189.134 Since the FSC is bound to follow statutory law as interpreted by the
Supreme Court and in its absence that of the High Court, it would follow that
it would also abide by their interpretation in non-statutory matters that do not
fall under its exclusive jurisdiction. However, I could not find any case law on
this point. An interesting jurisdiction conferred on the FSC is its power to
review its own decisions under Article 203 E (9) of the Constitution.
In its very first decision, that is, Muhammad Riaz v. Federal Government
(1980)135 the FSC was confronted with the question whether it was bound by
the earlier decision of the Shariat Bench of the Peshawar High Court which
was one of the four such Benches in all the four High Courts at that time, Gul
Hassan v. Government of Pakistan (1980).136 Both cases were concerned with
the contentious laws of qi╖┐╖ and diyat. The majority of the members of the
Bench decided that they were bound by the decision of the Shariat Bench of
the Peshawar High Court because the FSC was a successor of the former.
Aftab Hussain, J as he then was of the FSC, in his minority decision had
opined that the Shariat Bench of the Peshawar had limited territorial
jurisdiction, whereas the FSC had no such territorial limitations; therefore, the
decision of the former was not binding on the latter. 137
As explained above, the FSC is bound in ordinary cases by the Supreme
Court or, in the absence of its decision, by the High Courts. This would mean
that since the FSC is a subordinate court (to the Shariat Appellate Bench of the
Supreme Court), it has to follow the Supreme Court. Consequently, it has the
freedom to overrule its own previous decisions like the Supreme Court.
Moreover, its larger Bench binds a smaller Bench. This is so only by analogy
as we shall keep our eyes open. Since this is a matter of general law in which it
has to follow the Supreme Court and in the absence of its decision, the High
Courts. The well settled principle is that one Division Bench of a Higher
Court will not give a contrary decision to another Division Bench: be that a
132
1985 PCr. LJ 1064.
133
The Supreme Court had decided the same point in Mauj Ali v. Syed Safdar Hussain Shah, 1970
SCMR 437. For details see, my, “Protecting Women: Assessing State Legislation and the Role of
Superior Judiciary in Pakistan with special Reference to Family Law Cases from 2004–2006,”
Journal of Social Science, 2: 2 (2007), 31–32.
134
Muhammad Sarwar v. The State, PLD 1988 FSC 42 at 50–51.
135
PLD 1980 FSC 1.
136
PLD 1980 Pesh 104.
137
PLD 1980 FSC 1 at 10.
465
Bench of the Supreme Court, 138 a High Court139 or the FSC. The idea behind
this is probably that an equal Bench binds an equal Bench because otherwise it
will not be proper judicial behaviour. In the case of the FSC, this idea is also
strengthened by the Rules of the FSC. Under Rule 4(6), when two judges out
of four disagree with a decision, the case is referred to a larger Bench. The
judicial norm that its larger Bench binds a smaller Bench is supported by the
FSC in Mst. Nek Bakht v. State (1986).140
Precedent and Islamic Legal Theory

As we know, the doctrine of stare decisis is a characteristic of the common law
system. To determine the status of the notion of precedent in Islamic law, we
have to discuss the relevant Islamic legal history to explore/trace its historical
roots. Islamic legal history is generally divided into seven periods 141 starting
138
In Mohammad Saleem v. Fazal Ahmad, 1997 SCMR 315, the Supreme Court three members
Bench followed the earlier decision of Mohammad Rafiq v. The Border Area Committee Lahore,
1990 SCMR 817, which was given by a five members Bench. A similar case on this point is
Azmatullah v. Mst. Hamida Bibi, 2005 SCMR 1201, in which the Supreme Court ruled that it is a
well settled principle enunciated by the Supreme Court that the judgment of a larger Bench is
binding on a smaller Bench. A full Bench of the Supreme Court has laid down the law in Fazal
Muhammad Chaudhry v. Ch. Khadim Hussain, 1997 SCMR 1368, that “When there is conflict
between two decisions of this Court, then the decision of the larger Bench would prevail.” Ibid.,
at 1370 (A). In Babar Shehzad v. Said Akbar, 1999 SCMR 2518, the Supreme Court confirmed
the above principle and held that when the view of five members Bench was contrary to the
view of two members of Bench, the view of five members Bench would prevail. Ibid., at 2522.
139
In Multiline Associates v. Ardeshir Cowasjee, PLD 1995 SC 423; 1995 SCMR 362, the Supreme
Court held that, “[T]he earlier judgment of [an] equal Bench in the High Court on the same
point[,] is binding upon the second Bench and if a contrary view had to be taken, then request
for constitution of a larger Bench should have been made.” Ibid., at 435. Other cases on this
point are: Chaudhry Muhammad Saleem v. Fazal Ahmad, 1997 SCMR 314. Moreover, the
Supreme Court has ruled in All Pakistan Newspapers Society v. Federation of Pakistan, PLD 2004
SC 600, that a Bench of similar number of a High Court binds another Bench of the same
number. Ibid., at 614. This position was also reaffirmed in Shahzad Dreho v. Khalid Mahmood
Soomro, 2003 PCr. LJ 319.
140
PLD 1986 FSC 174 at 177 (B).
141
The different periods of Islamic legal history are divided as: Ist period, 13 BH–11 AH/610–632;
the 2nd period, 11–41/632–661; 3rd period, 41–132/661–749; 4th period, 132–350/749–961; 5th
period, 350–8th–9th/961–14th century; 6th period, 8th–11th/14th–17th century; and the 7th
period, 11th/17th — to the present. The above is only a tentative periodization for convenience
of understanding the early history of fiqh. For details of each periods; how Islamic law
developed during each phase; what were its sources and so on, see, Imran A. K. Nyazee,
Outlines of Islamic Jurisprudence, 2nd edn. (Islamabad: Centre for Islamic Law & Legal Heritage,
2002), 349–358; N. J. Coulson, A History of Islamic Law (Edinburg: Edinburgh University Press,
1964; reprint Delhi: Universal Law Publishing Co., 1997), 21–73; Hussain Hamid Hassan, An
Introduction to the Study of Islamic Law, trans. A╒mad ╓asan (Islamabad: International Islamic
University, 1997), 16–122; Joseph Schacht, An Introduction to Islamic Law (Oxford: The
466 MUHAMMAD MUNIR
from 13 BH/610 CE to the present. The first period begins with revelation to
the Prophet (peace be on him) and ends with his death. In the second period of
the growth of Islamic law, the foundations of Islamic legal system were refined
and developed. 142 A large number of legal principles were laid down and
established through the decisions of the Companions of the Prophet (peace be
on him). These opinions became precedents for later times. 143 During the third
and fourth periods of growth, that is, 41–132/661–749 and 132–350/749–961
respectively, various schools of thought emerged, based on adherence to
different methodologies of interpretation. The four major Sunn ┘ Schools that
continue to be effective are the ╓anaf┘,144 M┐lik┘,145 Sh┐fi‘┘,146 and ╓anbal┘147
schools. Besides these, the most important school is that of the Sh ┘‘ah.148 There
were also other schools of law, but they died down and now have very few
followers.149
Clarendon Press, 1964; reprint Delhi: Universal law Publishing Co., 1997), 15–75; Asaf A. A.
Fyzee, Outlines of Muhammadan Law, ed. Tahir Mahmood, 5th edn. (New Delhi: Oxford
University Press, 2008), 20–28.
142
Nyazee, Outlines of Islamic Jurisprudence, 351.
143
Ibid.
144
The ╓anaf┘ school of thought was founded by Im┐m Ab┴ ╓an┘fah Nu‘m┐n b. Th┐bit
(d. 150/767).
145
The M┐lik┘ school was founded by Im┐m M┐lik b. Anas (d. 179/795).
146
The Sh┐fi‘┘ school of thought was founded by Im┐m Mu╒ammad b. Idr┘s al-Sh┐fi‘┘
(d. 204/819).
147
The ╓anbal┘ school was founded by A╒mad b. ╓anbal (d. 241/855).
148
The basic difference between Sh┘‘ahs and Sunn┘s goes back to the election of Ab┴ Bakr as
caliph in the assembly at Thaq┘fah after which though almost all the companions gave their
pledge of allegiance to Ab┴ Bakr, a few companions (highest recorded number to be thirteen)
withheld their pledge considering ‘Al ┘ b. Ab┘ ║┐lib to be more suitable to be the caliph,
however they all, one by one, gave their pledge to Ab┴ Bakr in few months time. However,
later in history after martyrdom of ╓usayn b. ‘Al┘ when Sh┘‘ah started to become a distinct
community theory that the Im┐m is designated by God and not by people was developed. So
Sh┘‘ah deny the principle of election in the matter of the Imamate, and hold that the Prophet
(peace be on him) had designated ‘Al┘ as his successor on a certain occasion. For a detailed
account of the origins and evolution of Sh┘‘ah Islam, see, S. H. M. Ja‘far┘, The Origins and Early
Development of Shi‘a Islam (Karachi: Oxford University Press, 2000). The Sh┘‘ah, however, are
divided into a large number of sub-schools. See, Fyzee, Outlines of Muhammadan Law, 39–40.
149
Some of these are: the Awz┐‘┘ school which was founded by Im┐m ‘Abd al-Ra╒m┐n al-Awz┐‘┘
(d. 157/774); the ╙┐hir┘ school, founded by D┐w┴d b. ‘Al┘ al-I╖fah┐n┘, better known as Ab┴
Sulaym┐n al-╙┐hir┘ (d. 270/883); and the ║abar┘ school, founded by Mu╒ammad b. Jar┘r al-
║abar┘ (d. 310/922). The last three schools are extinct; however, the ╙┐hiri school has some
followers in Iraq. Some less important schools, that have survived, are: Zayd┘s in Yemen. Im┐m
Zayd (d. 122/740) was the first son of ‘Al┘ Zayn al-‘└bid┘n (d. 94/713) — “the fourth Im┐m of
the Sh┘‘ah” but he is considered Im┐m by only the Zayd┘s of Yemen while the Sh┘‘ah (Twelvers)
considered his younger brother Mu╒ammad al-B┐qir (d. 113/731) as their fifth Im┐m. The last
school to mention is the Ib┐╔┘ school in Oman and Zanzibar. This school is the remanence of
467
As is well known, Im┐m Mu╒ammad b. al-╓asan al-Shayb┐n┘ (d. 189/804)

was the first person who wrote the first major works on Islamic law. 150 These
include Kit┐b al-A╖l or al-Mabs┴═, al-J┐mi‘ al-╗agh┘r,151 al-J┐mi‘ al-Kab┘r,152 al-
Siyar al-╗agh┘r and al-Siyar al-Kab┘r.153 These books were referred to as the
╙┐hir al-Riw┐yah or the preferred rules from among the different narrations of
the rules. Shayb┐n┘’s works include the rulings of Ab ┴ ╓an┘fah Nu‘m┐n b.
Th┐bit (d. 150/767), Ab┴ Y┴suf Ya‘q┴b b. Ibr┐h┘m (d. 183/798) and of
Shayb┐n┘ himself as well as Zufar b. al-Hudhayl b. Qays (d. 157/774), ‘Abd al-
Ra╒m┐n al-Awz┐‘┘ (d. 157/774) and other jurists of his time. Nyazee argues
that “a system of law that presents such a variety of opinions is difficult to
follow, unless some rules are chosen for practice.” 154 This is why after
recording the rulings of different jurists, Shayb ┐n┘ identified some of those
rules that were to be followed by people. These rules were referred to as ╙┐hir
rules or the rules preferred for compliance. In al-J┐mi‘ al-╗agh┘r, Im┐m
Shayb┐n┘ focused entirely on the preferred rules that were to be followed by
common people as well as q┐╔┘s.155 Al-Siyar al-╗agh┘r or the Shorter Book of
Muslim International Law was the summary of preferred rules that are to be
followed by the Muslim Caliphs during war and peace with other states. 156 The
fuqah┐’ of various schools, especially the ╓anaf┘ School, compiled the
preferred rules after Shayb┐n┘. These treatises include Mukhta╖ar157 al-║a╒┐w┘
by Im┐m Ab┴ Ja‘far A╒mad b. Mu╒ammad al-║a╒┐w┘ (d. 321/933), al-K┐f┘ f┘
Kh┐rijite. The ‘Kh┐rijites’ or ‘seceders’ demonstrated their hostility to both Mu‘┐wiyah and ‘Al┘
during the civil war. They assassinated ‘Al┘ and attempted to assassinate Mu‘┐wiyah. See,
Coulson, A History of Islamic Law, 103–104.
150
Al-Muwa══a’ of Im┐m M┐lik is prior in time but it is not considered a book of Islamic law
proper. In reality, it was a record of the then current law and practice in Mad┘nah and is “not
primarily concerned to establish the origins of that law.” See, Coulson, A History of Islamic of
Law, 66. Moreover, Kit┐b al-└th┐r of Im┐m Ab┴ Y┴s┴f Ya‘q┴b b. Ibr┐h┘m cannot be treated as a
book of Islamic law proper. See, Imran A. K. Nyazee, “Introduction” to al-Hid┐yah, trans.
Imran A. K. Nyazee (Bristol: Amal Press, 2006), xiii, n. 10.
151
Mu╒ammad b al-╓asan al-Shayb┐n┘, al-J┐mi‘ al-╗agh┘r, ed. ‘Abd al-╓ayy al-Laknaw┘
(╓yder┐b┐d: n.d.; reprint Karachi: Id┐rat al-Qur’┐n wa ’l-‘Ul┴m al-Isl┐miyyah, 1987).
152
Mu╒ammad b. al-╓asan al-Shayb┐n┘, al-J┐mi‘ al-Kab┘r (Beirut: D┐r I╒y┐’ al-Tur┐th al-‘Arab┘,
1979).
153
This is the magnum opus study of international law. The book is not available separately and
is published with commentary. See, Mu╒ammad b. al-╓asan al-Shayb┐n┘, Kit┐b al-Siyar al-Kab┘r,
commentary by Im┐m Ab┴ Bakr Mu╒ammad b. A╒mad al-Sarkhas┘, ed. Mu╒ammad ╓asan
Ism┐‘┘l al-Sh┐fi‘┘, 5 vols. (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 1997).
154
Nyazee, “Introduction” to al-Hid┐yah, xiii.
155
Ibid.
156
Mu╒ammad b. al-╓asan al-Shayb┐n┘, The Shorter Book of Muslim International Law , ed. and
trans. M. A. Ghazi (Islamabad: Islamic Research Institute, 1998).
157
The term Mukhta╖ar (literally, summary) seems to be used for a rule book.
468 MUHAMMAD MUNIR
Fur┴‘ al-╓anafiyyah by al-╓┐kim al-Shah┘d al-Mirwaz┘ (d. 334/945), Mukhta╖ar

al-Karkh┘ by Im┐m ‘Ubayd All┐h b. al-╓asan al-Karkh┘ (d. 340/951), Tu╒fat al-
Fuqah┐’ by Abu Bakr ‘Al┐’ al-D┘n b. A╒mad al-Samarqand┘ (d. 538/1143) and
Bid┐yat al-Mubtad┘ by Burh┐n al-D┘n ‘Al┘ b. Ab┴ Bakr al-Margh┘n┐n┘
(d. 539/1144). The famous ╓anaf┘ work al-Hid┐yah is a commentary on
Bid┐yat al-Mubtad┘. There are also many other books in this series. 158 The
Mukhta╖ars form a linked chain as each Mukhta╖ar borrows from the one that
precedes it. Nyazee opines:
In this chain, preference is usually given to those opinions that came first. The
attempt being to commence the statement of the rules with the opinions of
earlier Im┐ms.159 This conforms with the system of precedents in Islamic law. In
Islamic law, the precedents assigned priority are those that were laid down first and
not those that came later.160 … The presumption in Islamic law is that the decisions
arrived at earlier are closer to the u╖┴l,161 while those that came later are to be
handled with caution.162
This system of precedents attaches significance to chains coming down

from the earlier Im┐ms, so as to distinguish the authentic from the less
authentic.163 The reverse order is followed in the common law, that is, the
158
For details see, Nyazee, “Introduction” to al-Hid┐yah, xiv–xv.
159
Nyazee is trying to say that the opinions of earlier Im┐ms are given preference over the
opinions of latter Im┐ms.
160
Nyazee, “Introduction” to al-Hid┐yah, xvi.
161
Ibid., xvi, n. 15. That is, they were derived by those who had greater knowledge of the
evidences, as they were closer to the period of the Prophet (peace be on him) and were more
proficient in the use of the u╖┴l that they had laid down themselves.
162
Ibid.
163
Ibid., xvi. Apart from the issue of ‘later’ and ‘earlier,’ there is also the important question of
the status of a jurist. For instance, the opinion of Mu╒ammad b. Mu╒ammad al-Bazz┐z┘
(d. 819/1424) cannot overrule the opinion of Ab┴ ’l-╓usayn A╒mad b. Mu╒ammad al-Qud┴r┘
(d. 428/1037) not only because al-Bazz┐z┘ came later than al-Qud┴r┘ but also because al-Bazz┐z┘
was among the a╖╒┐b al-fat┐w┐ and al-Qud┴r┘ was among the a╖╒┐b al-mut┴n. Thus, there may
be a hypothetical possibility that the opinion of a later jurist may overrule the opinion of an
earlier jurist, provided the later jurist is of a higher grade than the earlier jurist. As a remote
possibility, a ‘new’ mujtahid mu═laq may also become the founder of a new school. Professor
Nyazee has based his statement regarding precedents in Islamic law on the presumption that a
person strictly follows only one school of thought. As such there is no room, in his theory, for
talf┘q (the construction of an opinion by combining part of a doctrine of one school with a part
from another). However, takhy┘r (choosing opinions from one jurist or the other) within one
school is possible and this exactly is the task of the a╖╒┐b al-tarj┘╒. There may be a situation in
which a jurist of any school of thought, such as the ╓anaf┘ School, revokes his earlier fatw┐ that
was in accordance with the classical view of the school and gives a new fatw┐ which may oppose
the classical view. A jurist is allowed to do this provided he follows the established principles for
preferring one opinion to the other within a school. A typical example is that of Mawl┐n┐
469
latest decision is given precedence over the earlier. In other words, in the
common law system, an earlier decision can be overruled by a subsequent
Court or even by a larger Bench of the same Court. Once a case is overruled,
it is considered a bad authority and is not cited by lawyers to support a point.
Lawyers are even reprimanded for citing overruled cases, 164 whereas in Islamic
law the earlier the opinion, the better it is. In common law the latest the
decision, the better it is and the earlier decision has no value for the case at bar.
The ╓anaf┘ jurists poffer many hypothetical cases to answer questions
should they arise but the details of the decisions given by courts are not
reported. The reason for this could be that since these did not constitute
binding precedents for the same or different, lower or equal courts, these were
not preserved. Ab┴ Bakr al-Kha╖╖┐f (d. 260/874) of the ╓anaf┘ School of law
in his book Adab al-Q┐╔┘ mentions that the q┐╔┘’s d┘w┐n or archive includes all
the records kept by the judge, filed in a book case. The two primary
components of the d┘w┐n are ma╒╔ars and sijills. The ma╒╔ar is the record of
the actions of, and claims by, litigants, made in the presence of the q┐╔┘, as
recorded by his scribe. The q┐╔┘ bases his judgment on the contents of the
ma╒╔ar. The sijill is the witnessed record of the contents of each ma╒╔ar
together with the q┐╔┘’s judgment in each case. 165 It is important to note that
Muslim mujtahids and fuqah┐’, including those of the earlier times, are not
automatically judges; rather, they are independent ‘ulam┐’. Their opinions, not
decisions or judgments as normally issued by the q┐d┘s on particular cases, are
Ashraf ‘Al┘ Th┐naw┘ (d. 1362/1943) who revoked his earlier fatw┐ given in 1913 regarding the
dissolution of marriage in case the wife becomes apostate. The Mawl┐n┐ based his subsequent
fatw┐ given in 1933 on the opinion of latter ╓anaf┘ jurists of Samarkand and Bukhara who
asserted that the nik┐╒ of a Muslim woman is not dissolved automatically. In other words, the
Mawl┐n┐ overruled his earlier opinion. For details see, Ashraf ‘Al┘ Th┐naw┘, al-╓┘lat al-N┐jizah
li ’l-╓al┘lah al-‘└jizah [A Successful Legal Device for the Helpless Wife] (Lahore: al-Fay╖al
N┐shir┐n wa T┐jir┐n-i Kutub, 1996); and Khalid Masud, “Apostacy and Judicial Separation in
British India,” in Khalid Masud, David Powers and Brinkley Messick, eds. Islamic Legal
Interpretation: Muftis and Their Fatw┐s (Cambridge: Harvard University Press, 1996, repr.
Karachi: Oxford University Press, 2005), 193–203.
164
In Syed Munawar Ali v. Mehta W. N. Kohli, 1980 CLC 1561, an experienced advocate got his
appeal admitted on the basis of an overruled judgment. Chief Justice Mir Khuda Bakhsh Marri
of the Baluchistan High Court regretted the conduct of the advocate and warned him to be
careful in future. Ibid., at 1563 A.
Besides these the Q┐╔┘’s d┘w┐n includes: a record of witnesses whose character had been
165
confirmed by the witness investigators; names of endowment supervisors and their salaries,
guardians of orphans, divorcees, and widows; accounts sheets, a register of bequests; copies of
written documents, acknowledgments and gifts; and copies of letters sent to and received from
other q┐╔┘s. See, Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge:
Cambridge University Press, 2004), 93–94.
470 MUHAMMAD MUNIR
thus obviously not precedents. They resemble what we know throughout

Islamic history as the fat┐w┐ of the muft┘s.
Basheer Ahmad argues that in medieval India Awrangz ╚b ‘└lamg┘r (1068–
1118/1658–1707) had ordered to maintain ‘mah arn┐mahs’ (Persian for
ma╒╔ars) or records of judgments of higher courts for circulation among q┐╔┘s
and muft┘s.166 He further states that during the entire Mughal period the muft┘s
were enjoined to copy out precedents and to read and place them before the
q┐╔┘s.167 There is no evidence to prove that such judgments were binding for
other courts. According to al-Fat┐w┐ al-‘└lamg┘riyyah,168 the most exhaustive
and authoritative book of the ╓anaf┘ jurisprudence written on the orders of
Awrangz╚b by a group of scholars, 169 the record of cases was not to be
destroyed and was to be made available if requisitions were made by other
courts.170 The Fat┐w┐ was followed by the later Mughal rulers. 171 Basheer
Ahmad has found a manuscript called B┐qiy┐t al-╗┐li╒┐t which contains 50
recorded cases from the Mughal era and states that every case describes the
facts as well as the reasons for the decisions and is duly signed and stamped.
This book was unpublished till 1941. 172 Judgments were not regarded as
binding precedents on the points with which they dealt. This is the main
reason that we do not find law reports in the early and medieval periods of
Islam corresponding with those of modern common law countries.
166
Ahmad, The Administration of Justice in Medieval India, 188.
167
Ibid.
168
Shaykh Ni╘┐m, et al., al-Fat┐w┐ al-‘└lamg┘riyyah (Cairo: Bulaq, 1310). The book was in six
volumes, and was also published elsewhere also. It was translated in parts in N. E. Baillie’s
Digest of Moohummudan Law on the Subjects to which it is Usually Applied in British Courts of
Justice in India, 2nd edn. (London: 1875). Also translated in part in N. E. Baillie, Mohammadan
Laws on Land Tax According to the Moohummudan Law: Translated from the Fat ┐w┐ Alumgeeree,
(Lahore: 1979). It is also known as Fat┐w┐ Hindiyyah.
169
It was compiled by a Royal Commission of ‘Ulam┐’ under the supervision of Shaykh
Ni╘┐m — a celebrated jurist from Lahore. He was assisted by six more scholars. However, the
names of only four of them are available. They are Mu╒ammad Jam┘l, i┐’ al-D┘n, Jal┐l al-D┘n
╓usayn and Mu╒ammad ╓usayn. See, Ahmad, The Administration of Justice, 42. The Code was
the great Corpus Juris of Awrangz╚b’s reign and is more or less an exposition of the substantive
law then prevailing in India.
170
Shaykh Ni╘┐m, et al., al-Fat┐w┐ al-‘└lamg┘riyyah, 6: 249.
171
The Fat┐w┐ was not only used by the q┐╔┘s of ‘└lamg┘r but also by other Emperors till the
end of the Mughal dynasty. The Fat┐w┐ replaced Fiqh-i F┘r┴z Sh┐h┘, which was a Code of Civil
Procedure complied at the time of F┘r┴z Sh┐h Tughlaq (d. 790/1388). This book remained the
basis of the judicial system under the Delhi rulers until replaced by the al-Fat┐w┐ al-
‘└lamg┘riyyah. See, Ahmad, The Administration of Justice, 41–42. Fiqh-i F┘r┴z Sh┐h was based on
material collected by Ya‘q┴b Mu╘affar Kir┐m┘ and is available as MS. in India Office Library,
2987. See, Qureshi, The Administration of the Mughal Empire, 267.
172
In 1941, Basheer Ahmad intended to publish it but I have not heard of its publication. If it is
published, then I request to be informed.
471
Ijtih┐d and Taql┘d in Islamic Law and the Doctrine of Stare Decisis
in Pakistani Law
Having explained precedent in Islamic legal theory, we now turn our attention
to see whether the practice of precedent in Pakistan, that is, in the higher
Court which binds the lower Courts, is accepted in Islamic law? To
understand the place of the Pakistani/common law practice, we have to
explain some relevant doctrines that are essential in our discussion. These
doctrines are ijtih┐d and taql┘d. In Islamic legal theory, a mujtahid is a person
who exercises his utmost effort to extract a rule from the subject matter of
revelation while following the principles and procedures established in legal
theory.173 The process of this reasoning — the effort itself — is known as
ijtih┐d. It literally means exerting one’s self to the utmost to attain an object.
Technically, it is exerting one’s self to form an opinion in a case or as regards a
question of law. It is also defined as the “effort made by the mujtahid in
seeking knowledge of the a╒k┐m (rules) of the Shar┘‘ah through
interpretation,” 174 and the “effort of the jurist to derive the law on an issue by
expending all the available means of interpretation at his disposal and by
taking into account all the legal proofs related to the issue by the judge.” 175
Thus the ‘illah, the underlying legal cause of a ╒ukm (rule), in the previous
case, its ratio decidendi, may be the same, on the basis of which the
accompanying ╒ukm (rule) is extended to other cases. 176 Ijtih┐d is the process
for the derivation of the law. The result of the ijtih┐d is a source as it is the
precedent required for later cases. 177
Certain areas are excluded from the mujtahid’s sphere of ijtih┐d. These are
texts which unambiguously state the legal rules. The certainty ( qa═‘) generated
by these texts ab initio precludes any need for reinterpretation. 178 Relevant
examples are the prohibition of adultery, fornication, drinking of alcohol,
theft, ╒ir┐bah and other ╒ud┴d offences. Also excluded are those cases which
are subject to consensus. 179 In all other spheres of the law, ijtih┐d is simply a
collective duty (far╔ kif┐yah) of Muslims.
A mujtahid is required to fulfil all the conditions 180 necessary for ijtih┐d if
173
See, Wael B. Hallaq, A History of Islamic Legal Theory: An Introduction to Sunn ┘ U╖┴l al-Fiqh
(Cambridge: Cambridge University Press, 1997; reprint, 1999), 117.
174
Nyazee, Islamic Jurisprudence, 263.
175
Ibid., 395.
176
See, ibid. This is in the case of qiy┐s (analogy).
177
See, ibid., 341.
178
See, ibid.
179
See, ibid., 266–67.
180
He must have sufficient knowledge of all the verses of the Qur’┐n in which the rules of
472 MUHAMMAD MUNIR
he wants to exercise ijtih┐d. Once a person fulfils these conditions, being a

mujtahid he cannot follow the ijtih┐d of others. Whenever he is presented with
a case, he must find for it a solution if he is capable of doing so. The reason for
this is that no mujtahid is infallible, and that his opinion extracted through
ijtih┐d is as valid as that of another. 181 Moreover, a mujtahid must never follow
the opinion of a lesser mujtahid. According to ‘Ab┴ ’l-Wal┘d Sulaym┐n b.
Khalaf al-B┐j┘ (d. 747/1081), if a mujtahid is incapable of solving a particular
case, he can resort to the opinion of another mujtahid.182 It is permitted for a
jurist to practice ijtih┐d in a particular branch of the law when he is unable to
practice it in others. In the first three centuries of Islamic history, there were
many mujtahid┴n or those who exercised independent judgment. Later on,
most of the mujtahd┴n did not exercise independent ijtih┐d, but followed one
of the established madhhabs or schools of thought. Such a mujtahid was
known as mujtahid f┘ ’l-madhhab (mujtahid within a school of law). In our
times in countries like Pakistan ijtih┐d is a legislative function because it lays
down the law for the first time and the state has monopoly over legislation. 183
According to the majority view within the ╓anaf┘ school of law, ijtih┐d is
not a necessary condition for a q┐╔┘: however, for the M┐lik┘, the Sh┐fi‘┘, and
the ╓anbal┘ schools of law, it is a necessary condition. 184 Ab┴ Bakr b. Mas‘┴d
al-K┐s┐n┘ (d. 587/1191), who argues that ijtih┐d is not a condition, mentions at
the same time that in cases for which there exists no authoritative text or
ijm┐‘, the q┐╔┘ must follow his ijtih┐d.185 He asserts that if a q┐╔┘, who is a
mujtahid, decides according to the view of another school and his judgment is
valid by consensus 186 and if two different decisions based on ijtih┐d are given
by the same q┐╔┘ in two similar cases, the first decision is not invalidated. 187
What we understand from these statements is that in the majority of cases, a
Islamic law are found; he must be familiar with ╒ad┘th collections as well as the science of ╒ad┘th
criticism; must know the Arabic language very well; must know the theory of abrogation; he
must know all those cases that are subject to consensus; and he must have the knowledge of the
Maq┐╖id al-Shar┘‘ah. See, Nyazee, Islamic Jurisprudence, 271–72. Beside the above conditions a
Q┐╔┘ should be wise, patient, honest, humble, learned and inquisitive.
181
See, Hallaq, A History of Islamic Legal Theory, 118–119.
182
Ab┴ ’l-Wal┘d Sulaym┐n b. Khalaf al-B┐j┘, Kit┐b al-╓ud┴d f┘ ’l-U╖┴l, ed., Naz┘h ╓amm┐d
(Beirut: Mu’assasat al-Zu‘b┘ li ’l-║iba‘ah wa ’l-Nashr, 1973), 723
183
Nyazee opines that in Pakistan, the Council of Islamic Ideology cannot be deemed to have
the qualifications of a mujtahid and its status is more like that of a muft┘ — jurist-consult, whose
opinions are not binding. Nyazee, Islamic Jurisprudence, 272–273.
184
See, Ab┴ Bakr b. Mas‘┴d al-K┐s┐n┘, The Unprecedented Analytical Arrangement of Islamic
Laws, trans. Imran A. K. Nyazee (Islamabad: Advanced Legal Studies Institute, 2007), 21.
185
See, ibid., 33.
186
See, ibid., 38.
187
See, ibid., 39.
473
q┐╔┘ has to be a mujtahid: thereby, he is not allowed to follow the ijtih┐d of a

fellow mujtahid/judge. Now it is easy for us to assert, on the basis of what has
been explained above, that in Islamic law a court is not bound by the decision
of another court, whether the latter court is of equal rank or higher in the
hierarchal organization.
After considering the doctrine of ijtih┐d it would be worthwhile to
consider the parallel doctrine of taql┘d.188 Every Muslim has to follow the law
but every one is not learned enough in the rules of the Shar┘‘ah; In that case, he
is supposed to follow the opinions of those who know better. Thus, the non-
mujtahids are commonly known as the ‘followers’ or ‘imitators’ ( muqallid┴n;
sing. muqallid) of mujtahids. Every person who is not a mujtahid is ipso facto a
muqallid and is required to follow the opinions of mujtahids.189 Im┐m Ab┴
╓┐mid Mu╒ammad b. Mu╒ammad al-Ghaz┐l┘ (d. 505/1111) puts forward a
two-fold argument for proving that taql┘d is obligatory:
1. That the Companions of the Prophet had ijm┐‘ (consensus) that the legal
experts were to guide the laymen in legal issues and that the laymen were
not required to attain the status of ijtih┐d.
2. That there is also consensus on the obligation of every layman to follow the
law and it is more than obvious that not every person is capable of
becoming an expert in law: Making it obligatory upon a layman to attain
the status of ijtih┐d is asking him to do the impossible because it will lead
people to abandon their respective professions as well as making families
and the whole system will collapse because everyone would devote his skills
to acquire the knowledge of law. Moreover, it will also lead the scholars to
leave the intellectual work and turn to the worldly affairs. Resultantly, the
knowledge of law will vanish. 190
The muqallid┴n are subdivided into those who are jurists and those who
are laymen. Im┐m M┐lik b. Anas is said to have permitted fourteen cases of
taql┘d.191 The conclusion is that taql┘d is unavoidable, that it “is part of our
188
Taql┘d, literally imitation, means following the opinion of another person without
knowledge of the authority for such opinion.
189
See, Hallaq, A History of Islamic Legal Theory, 122.
190
Ab┴ ╓┐mid Mu╒ammad b. Mu╒ammad al-Ghaz┐l┘, al-Mus═a╖f┐ min ‘Ilm al-U╖┴l (Beirut: D┐r
I╒y┐’ al-Tur┐th al-‘Arab┘, n.d.), 2: 203. Hallaq gives similar arguments in support of taql┘d and
says: “This obligation is deemed necessary because it cannot be expected of all members of the
community to rise to the level of mujtahids, for this would require that they devote all their
energies and time to attain a sophisticated knowledge of the law which would in turn mean that
no one would be able to acquire any other skill. As a consequence, society, whose functioning
depends on all sorts of professions, would become impossible.” Hallaq, A History of Islamic
Legal Theory, 122.
191
See, Shih┐b al-D┘n Abu ’l-‘Abb┐s A╒mad b. Idr┘s al-Qar┐f┘, Shar╒ Tanq┘╒ al-Fu╖┴l f┘ Ikhti╖┐r al-
474 MUHAMMAD MUNIR
daily lives and we are indulging in some form of taql┘d at each step.” 192 For
example, a layman is permitted to accept the opinion of a doctor; it is
permitted to accept the opinion of an expert such as the opinion of a trader in
the valuation of property; and the statement of child bringing permission to
the guest at the door that he is allowed to enter may be accepted by the guest,
and so on.193
As stated above, since ijtih┐d is a far╔ kif┐yah, a duty to be fulfilled by
only a limited number of qualified persons, all laymen and non- mujtahid
jurists are under the obligation to follow the guidance of the mujtahids. This
obligation is further justified by reference to the Qur’ ┐n 16:43 which states:
“You people can ask those who have knowledge if you do not know.” 194 Here,
“those who have knowledge” is taken to refer to the mujtahids. Some of the
Companions, who were less proficient in legal matters, used to ask for the
opinions of those who were more learned regarding legal issues. This practice
had never been condemned and is considered to have the status of ijm┐‘
(consensus). 195
Taql┘d is the basis for the Islamic theory of adjudication and its purpose is
to lay down a methodology for the faq┘h for discovering and applying the law
in the light of the already settled law. 196 This was the function of the mujtahids
within a school of thought and this is the “function of the modern judge too,
who discovers the law from the statutes and precedents to settle the disputes
brought to him.”197 Nyazee argues that “In Islamic law, the task of the faq┘h
appears to be the same as that of the modern judge who is settling issues of law
and fact.”198 The doctrine of taql┘d furnishes us the basic material for
developing an Islamic theory of adjudication.
Let us examine Articles 189, 201 and 203GG, of the 1973 Constitution of
the Islamic Republic of Pakistan. As we know, these Articles bind the lower
Courts to follow the decisions of the higher Courts. The law of binding
precedent under Articles 189, 201 and 203GG means that in Pakistan taql┘d is
Ma╒╖┴l f┘ ’l-U╖┴l (Cairo/Beirut: D┐r al-Fikr, 1973), 430–434; Nyazee, Islamic Jurisprudence, 331–
32.
192
Ibid., 332.
193
See, ibid.
194
The translation of this verse is taken from M. A. S. Abdel Haleem, The Qur’an: A New
Translation (Oxford: Clarendon University Press, 2004, reprint, 2005), 168.
195
See, Ab┴ ╓┐mid Mu╒ammad b. Mu╒ammad al-Ghaz┐l┘, al-Mankkh┴l min Ta‘liq┐t al-U╖┴l, ed.
Mu╒ammad ╓asan Hayt┴ (Damascus: D┐r al-Fikr, 1980), 472–73, 488–94; Ab┴ Is╒┐q Ibr┐h┘m al-
Sh┘r┐z┘, al-Luma‘ f┘ U╖┴l al-Fiqh, ed. Mu╒ammad al-Na‘s┐n┘ (Cairo: Ma═ba‘at al-S┐‘adah, 1908),
84–85.
196
See, Nyazee, Islamic Jurisprudence, 328.
197
Ibid.
198
Ibid.
475
institutionalized.199 Thus, on the one hand, precedent is binding and on the

other hand, Islamic law is enforced by the national courts. The result is that
the decisions of the superior courts concerning Islamic law become precedents.
This is a unique blend found in Pakistani law. The same is true of Bangladesh
and India where Islamic law is enforced by the national courts.
Since the superior courts in Pakistan can overrule their own previous
decisions, let us see whether the same is possible under Islamic law or not and
whether a decision can be overruled by a different court later in time. The
answer is in the affirmative. As mentioned earlier, under Islamic law, a judge is
supposed to be a mujtahid. This is supported by the Qur’ ┐n 4:105 which states:
“We have sent down the Scripture to you [Prophet] with the truth so that you
can judge between people in accordance with what God has shown you.”
‘Amr b. al-‘└╖ is reported to have heard the Prophet (peace be on him) saying
that when a judge resorted to ijtih┐d and decided a case, then if his ijtih┐d is
correct, he is rewarded twice; and if it be wrong he will receive one reward. 200
In the famous ╒ad┘th of Mu‘┐dh b. Jabal (d. 18/639), the Prophet (peace be on
him) endorsed Mu‘┐dh’s saying that he will resort to ijtih┐d to determine a
matter if he could not find its answer in the Qur’ ┐n and the Sunnah.201 If a
judge is bound by the ijtih┐d of other judge(s), then he will be prevented from
undertaking ijtih┐d,202 and as is known, one mujtahid is not bound to follow
another mujtahid. As a general principle of Islamic law, if a judge later finds
that the previous judgment was not correct, that is, if the ijtih┐d in the earlier
case was wrong, he will change his ijtih┐d and decide the new case accordingly.
‘Umar b. al-K╒a══┐b (d. 23/644), the second Caliph, emphasized this principle
when he wrote his famous letter, on the administration of justice to Ab ┴ M┴s┐
al-Ash‘ar┘ (d. 44/665). He said:
Let not a judgment you rendered yesterday, and that you have (later) reflected
199
See, Nyazee, Outlines of Islamic Juriprudence, 168; idem, Islamic Jurisprudence, 332.
200
See, Muslim b. al-╓ajj┐j, Sa╒┘╒ Muslim, Kit┐b al-Aq╔iyah, B┐b Bay┐n Ajr al-╓┐kim idh┐
Ijtahada fa A╖┐ba aw Akh═a’a; Ab┴ ‘Abd al-Ra╒m┐n al-Nis┐’┘, Sunan al-Nis┐’┘, Kit┐b └d┐b al-
Qa╔┐’, B┐b al-I╖┐bah f┘ ’l-╓ukm; Mu╒ammad b. ‘├s┐ al-Tirmidh┘, Sunan al-Tirmidh┘, Kit┐b al-
A╒k┐m, B┐b m┐ J┐’ f┘ ’l-Q┐╔┘ Yu╖┘b wa Yukh═i’.
201
See, Ab┴ D┐w┴d Sulaym┐n b. Ash‘ath al-Sijist┐n┘, Sunan Ab┘ D┐w┴d, Kit┐b al-Aq╔iyah;
Muhammad b. ‘├s┐ al-Tirmidh┘, Sunan al-Tirmidh┘, Kit┐b al-A╒k┐m, B┐b m┐ J┐’ f┘ al-Q┐╔┘ Kayfa
Yaq╔┘; Ab┴ Mu╒ammad ‘Abd al-Ra╒m┐n al-D┐rim┘, Sunan al-D┐rim┘, al-Muqaddimah, B┐b al-
Futy┐ wa m┐ f┘h min al-Shiddah.
202
‘Abd al-‘Az┘z Sa‘d al-Dagh┘sar, “╓ujjiyyat al-Saw┐biq al-Q┐n┴niyyah” (The Authority of
Precedents) al-‘Adl, 34 (1428/2007), 191. This article is more about the practice in Saudi ‘Arabia.
The author opines that we are not supposed to follow the opinions of fuqah┐’. This doctrine
exalts full Q┐╔┘ freedom of ijtih┐d and the proof-evaluation theory, requiring that a judge rule
only by what to him is truth. See, Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi
Arabia (Leiden: Brill, 2000), 94–95.
476 MUHAMMAD MUNIR
upon receiving guidance towards the correct view, prevent you from restoring a
right. Rights are ancient and cannot be annulled. Restoring a right is by far better
than persisting in a manifest error. Ponder over the matter, ponder over what is
causing you concern in your heart and is something that has not reached you
from the Noble Qur’┐n and the Sunnah. Thereafter, identify the precedents and
resembling cases and undertake analogy when such cases are found. Then rely on
what appears to be more appropriate and pleasing to Allah, the Exalted, and
what is most suitable as the truth. 203
‘Umar personally practiced what he asked his deputies to do. It is

reported that he changed his previous view regarding difference in
compensation in the case of fingers when he was told that the Sunnah states
that these are equal. 204 He also changed his view in the famous case of
inheritance. It is reported that he was asked to decide a case in which a woman
was survived by her husband, mother, uterine brothers and full brothers.
‘Umar gave one third to the uterine and the full brothers. Someone told him
that he did not give shares to both of them last time when he had decided a
similar case. To this ‘Umar replied: “That was what we decided [at that time]
and this is what we decide [today].” 205 It is clear from the above that a judge in
Islamic law is not bound by his previous decision and is free to overrule it if he
thought that the previous decision was wrong. However, the decision so given
shall have prospective effect between the parties only and similar cases decided
earlier not be reopened.
There remains a parallel question to answer: can the decision of a judge
which is based on his ijtih┐d be reversed on appeal? There were no fixed
institutions or procedures for appeal in the classical Islamic judicial institution.
However, persons disappointed by a judgment often sought its review, either
by another q┐╔┘ or by the ruler, or by his agents under the al-Ma╘┐l┘m courts.
There are some practices about appeals or reviews of cases in the early history
203
‘Al┘ b. ‘Umar al-D┐raqu═n┘, Sunan al-D┐raqu═n┘, commentary, Mu╒ammad Shams al-╓aqq
(Mult┐n: Nashr al-Sunnah, n.d)., 4: 206; A╒mad b. ’l-╓usayn al-Bayhaq┘, al-Sunnan al-Kubr┐
(Beirut: D┐r al-Fikr, n.d.), 10: 150; also see, ‘Al┐’ al-D┘n Ab┴ Bakr b. Mas‘┴d al-K┐s┐n┘, The
Unprecedented Analytical Arrangement of Islamic Laws, 58.
204
Im┐m al-Sh┐fi‘┘ states that ‘Umar made the decision that fifteen camels should be given as
compensation for the loss of a thumb, and prescribed different number of camels as
compensation for the loss of other fingers. ‘Umar then found a written ╒ad┘th which said that
ten camels should be given for every finger. He immediately withdrew his decision and
followed the one mentioned in the ╒ad┘th. See, Mu╒ammad b. Idr┘s al-Sh┐fi‘┘, al-Ris┐lah (Cairo:
Mu╖═af┐ al-B┐b┘ al-╓alab┘, 1969), 183; Ab┴ Bakr A╒mad b. ‘Al┘ al-Kha═┘b al-Baghd┐d┘, al-Faq┘h
wa ’l-Mutafaqqih (Beirut: D┐r I╒y┐’ al-Sunnah al-Nabawiyyah, 1339 AH), 1:134–35; Ab┴ Bakr
‘Abd All┐h b. Ab┘ Shaybah, Mu╖annaf (Karachi: Idarat al-Qur’┐n, n.d.), 9: 191.
205
See, ibid., 11: 255; and al-Bayhaq┘, al-Sunan al-Kubr┐, 6: 255.
477
of Islam. For example, when ‘Al┘ b. Ab┘ ║┐lib (d. 40/661) was working in
Yemen as the Prophet’s q┐╔┘, he told the parties in a difficult case that they
may, if they were not happy with his decision, to report the case to the
Prophet (peace be on him). On performing the Pilgrimage, the dissatisfied
parties put their case before the Prophet (peace be on him). After listening to
them, the Prophet (peace be on him) validated ‘Al ┘’s decision and is reported
to have said: “It is what has been adjudged between you ( huwa m┐ qu╔iya
baynakum).”206 In another important case, a litigant reported to the second
caliph ‘Umar b. al-Kha══┐b a decision given by two Companions in his case.
‘Umar said, “If it had been me, I would have decided [differently].” The
litigant then asked, “What prevents you, when the command is yours?” ‘Umar
responded, “If I could refer you to a text of the Qur’ ┐n, or to a Sunnah of the
Prophet, I would do so. But I refer you to an opinion, and opinion is held in
common.”207 What is deduced from this account is that a judgment may not be
reversed on appeal if it is based on ijtih┐d. In other words, a judgment may be
reversed only if it conflicts with an indisputable proof from the primary
sources of the law, that is, the Qur’┐n, the Sunnah and ijm┐‘. Thus, a rule
based on ijtih┐d may not be reversed. 208 This rule is based on the assumption
that all q┐╔┘s are qualified to perform ijtih┐d.
There is one interesting Pakistani case regarding precedent in Islamic law
which is worth quoting. In Mr. Badi-uz-Zaman Kaikaus v. President of
Pakistan,209 the petitioner — a retired judge of the Supreme Court — moved a
writ petition in the Lahore High Court, seeking a declaration inter alia that
the 1973 Constitution itself and the legal system under it were un-Islamic. In
his submissions, B. Z. Kaikaus had anticipated the fact that the High Court
was bound by the Supreme Court’s decisions under Article 189 and had
argued that the doctrine of binding precedent was un-Islamic and the High
Court was not bound by an un-Islamic but otherwise binding precedent 210 in
Ziaur Rahman v. State (1973)211 — a Supreme Court decision. It must be noted
that some of the questions raised by the petitioner were raised by the Supreme
206
See, Shams al-D┘n Mu╒ammad b. Ab┘ Bakr Ibn Qayyim al-Jawziyyah, Z┐d al-Ma‘┐d f┘ Hady
Khyr al-‘Ib┐d, ed. Shua‘yb al-Arnaw┴═ and ‘Abd al-Q┐dir al-Arnaw┴t (Beirut: Mu’assasat al-
Ris┐lah, 1979), 5: 13–14.
207
Ab┴ ‘Umar Y┴suf al-Nam┐r┘ Ibn ‘Abd al-Barr al-Qur═ub┘, J┐mi‘ Bay┐n al-‘Ilm wa Fa╔lih wa
m┐ Yanbagh┘ f┘ Riw┐yatih wa ╓amlih (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 1978), 2: 59.
208
See, Zayn al-D┘n b. Ibrah┘m Ibn Nujaym, al-Ashb┐h wa ’l-Na╘┐’ir ‘al┐ Madhhab Ab┘ ╓an┘fah al-
Nu‘m┐n (Beirut: D┐r al-Kutub al-‘Ilmiyyah, 1980), 105–8.
209
PLD 1976 Lah 1608.
210
Kaikaus’s petition challenged the entire legal system of Pakistan as being un-Islamic and
argued that all Muslims, including the judges of the High Courts, were under an obligation to
follow Islamic law. Ibid., 1615.
211
PLD 1973 SC 49.
478 MUHAMMAD MUNIR
Court in Ziaur Rahman’s case. Justice Sardar M. Iqbal concluded that the 1973
Constitution was neither an un-Islamic nor an infidel text. The judgment
avoided discussion on the question of binding precedent. On appeal against the
decision of the Lahore High Court, the Supreme Court followed the reasoning
of the High Court212 and did not discuss the question of whether the practice
of binding precedent was Islamic or not. Martin Lau argues that the Supreme
Court could have avoided any discussion about the Islamic character of the
legal system by simply declining jurisdiction on the grounds that there was a
specialist court [the Federal Shariat Court] invested with the power to
determine any alleged repugnance of a law to Islam. The Supreme Court did
not mention the Federal Shariat Court at all. 213 In Hakim Khan v. Government
of Pakistan (1992),214 however, the Supreme Court adopted this approach. 215 It
must be noted that since Article 189, 201, and 203 GG are Constitutional
provisions, the Federal Shariat Court has no jurisdiction to discuss the
question of their repugnancy to Islam. However, other judicial norms, such as
that an equal Bench cannot overrule an equal Bench are probably outside the
jurisdiction of the Federal Shariat Court because these norms are based on
judicial experience and are hallowed by time. Such judicial norms are
repeatedly upheld by the Supreme Court and the High Courts. In addition,
judicial norms might not be in the FSC’s jurisdiction as it can determine
whether a certain law is in conformity with the injunctions of Islam or not.
The term law would mean codified law and not judicial norms. Bringing in
judicial norms in the jurisdiction of the FSC would mean re-opening and
possibly overruling many decisions of the Supreme Court as well as the High
Courts. In other words, this would be beyond the FSC’s jurisdiction and
would possibly bring in confrontation with other Constitutional courts
which, obviously, needs to be avoided.
There is no denying the fact that the doctrine of precedent restricts judges
from undertaking ijtih┐d; secondly, it somewhat restricts the independence of
the judiciary.
The Saudi Legal System and Precedent

We will now discuss the legal system in vogue in the Kingdom of Saudi Arabia
to see the position of precedent in that system. The reason for choosing that
system is that it is based on Islamic law. Some salient features of the Saudi legal
system will also be explained along the way. In Saudi Arabia, by virtue of
212
B. Z. Kaikaus v. The President of Pakistan, PLD 1980 SC 160.
213
Lau, The Role of Islam, 35.
214
PLD 1992 SC 595.
215
Lau, The Role of Islam, 35, n. 144.
479
Article 48 of the Basic Regulation, the courts shall apply in cases brought
before them the rules (a╒k┐m) of the Islamic Shar┘‘ah in agreement with the
indications [or proofs] in the Book and the Sunnah and the regulations issued
by the ruler (wal┘ al-amr) that do not contradict the Book or the Sunnah.216 If
no answer is found in officially sanctioned sources, resort may be made to
ijtih┐d.217 However, ijtih┐d of the judge in the Kingdom is officially confined
to the ╓anbal┘ school of thought.218 Initially, it was decreed that judges will be
bound to rule by the ╓anbal┘ School’s opinion “on which fat┐w┐ are given.” 219
A subsequent order explained this by requiring that judgments follow two
particular late commentaries written by Man ╖┴r b. Y┴nus al-Bah┴t┘
(d. 1051/1641).220 In case there was contradiction or unavailability or the
absence of opinion in these two books, then the decision should be made
according to two other books, 221 and failing these, any books of the ╓anbal┘
school, with a preference for the simplest of them. 222
216
See, “Al-Ni╘┐m al-As┐s┘ li ’l-Mamlakat al-‘Arabyyiah al-Sa‘┴diyyah” (Basic Regulations of the
Kingdom of Saudi Arabia), 1992 available at: <http://www.mideastinfo.com/documents/
Saudi_Arabia_ Basic_Law.htm> (last visited: 29-08-2008). According to ‘Abd al-Ra╒m┐n al-
Shalh┴b, Article 48 of the Basic Regulations is not confined to any particular school of thought.
See, ‘Abd al-Ra╒m┐n al-Shalh┴b, al-Ni╘┐m al-Dast┴r┘ f┘ ’l-Mamlakah al-‘Arabyyiah al-Sa‘ ┴diyyah
bayn al-Shar┘‘ah al-Isl┐miyyah wa ’l-Q┐n┴n al-Maq┐rin (Riydh: Ma═ba‘at al-Saf┘r, 2005), 241. For a
detailed study of the legal system of Saudi Arabia, see, Frank E. Vogel, Islamic Law and Legal
System: Studies of Saudi Arabia; Abdullah F. Ansary, “A Brief Overview of the Saudi Arabian
Legal System,” available at: <http://www.nyulawglobal.org/globalex/saudi_ arabia.htm> (last
visited 01/05/2009).
217
Beside Islamic law other legal materials in the Kingdom are composed of Royal Decrees,
regulations, executive regulations, lists, codes, rules, procedures, international treaties,
ministerial resolutions, ministerial decisions, circular memoranda, explanatory memoranda, and
documents.
218
In Saudi Arabia, there is no formal code, legislation, or act which codifies criminal law,
family law, inheritance and many aspects of the Islamic law. In general, under Article 67 of the
Basic Regulation the adaptations of modern statutory provisions are lawful as long as they do
not contravene divine law. Such laws are introduced through the doctrine of public interest (al-
ma╖lahah al-mursalah) as a basis for rule making. Saudi Arabia uses the word ‘ni╘┐m’ which
means ‘Regulation’ in reference to statutory laws. “The Arabic word [qanun] which means ‘law’
is not used in Saudi Arabia, because [it] represents secular or temporal law and is therefore
prohibited by the Shari‘ah.” Maren Hanson, “The Influence of French Law on the Legal
Development of Saudi Arabia,” Arab Law Quarterly, 2: 3 (1987), 290.
219
Al-Hay’ah al-Qa╔┐’iyyah (Judicial Council), Decision No. 3, 7 Mu╒arram, 1347 (June 25,
1928). Confirmed by the King on 24 Rabi‘ I, 1347 (Sept. 9, 1928). Reprinted in Majm┴‘at al-
Nu╘um (Riydh: Institute of Public Administration, n. d.), 11.
220
These commentaries are: Man╖┴r b. Y┴nus al-Bah┴t┘, Shar╒ Muntah┐ al-Ir┐d┐t, 3 vols. (Beirut:
Dar al-Fikr, n. d.) and his Kashsh┐f al-Qin┐‘ ‘an Matn al-Iqn┐‘, ed. Hil┐l Mu╖ayli╒┘ Mu╖═af┐ Hil┐l,
6 vols. (Beirut: D┐r al-Fikr, 1982).
221
Ibr┐h┘m b. Mu╒ammad b. Sal┘m b. ╕┴y┐n, Man┐r al-Sab┘l f┘ Shar╒ al-Dal┘l, 2 vols. (Beirut: al-
Maktab al-Isl┐m┘, 1979); Man╖┴r b. Y┴nus b. Idr┘s al-Bah┴t┘, al-Raw╔ al-Murbi‘, a commentary
480 MUHAMMAD MUNIR
Only in case where applying the ╓anbal┘ view would entail hardship and
conflict with public interest, the view of another school may be adopted. 223 If
judgment is given according to a rule fixed in a recognized ╓anbal┘ book, a
judge could rule singly; whenever there is no such rule and the matter
demands ijtih┐d, then the court should rule as a body. 224 It seems that judges in
the Kingdom are not as free to resort to ijtih┐d as judges of the higher judiciary
in Pakistan are. However, judges in the Kingdom are not bound by the
decisions of their fellow judges and they are free to overrule their own
previous decisions if they think they were wrong. The process of appeal in the
Kingdom is very different from that in Pakistan. The current law in the
Kingdom provides:
If it is clear to the Board [of Review] that the judgment has contradicted a text of
the Book, the Sunnah, or the ijm┐‘, then it must prepare a decision thereon, with
explanation of its grounds in the Shar┘‘ah [which is sent] to the court which
issued the judgment.225
This means that even when the Board of Review does not consider the
decision of the trial judge to be correct, it respects the q┐╔┘’s independence. 226
Vogel argues that Saudi Arabia’s procedures is local modifications of the
on M┴s┐ b. A╒mad al-Hujaw┘, Z┐d al-Mustaqn┘: Mukhta╖ar al-Mughn┘, 2 vols. (Cairo: Ma═ba‘at al-
Sunnah al-Mu╒amadiyyah, 1955).
222
Al-Hay’ah al-Qa╔┐’iyyah [Judicial Board], Decision No. 3, 7 Mu╒arram, 1347 (June 25, 1928).
Confirmed by the King on 24 Rabi‘ I, 1347 (Sept. 9, 1928). Reprinted in Majm┴‘at al-Nu╘um, 11.
See also, Nabil Saleh, “The Law Governing Contracts in Arabia,” International and Comparative
Law Quarterly, 38 (1989), 764–765.
223
See, ibid.
224
Royal Will No. 647, 20 Rabi‘ I, 1349 (August 14, 1930). Reprinted in Majm┴‘at al-Nu╘um, 15–
16.
225
Ministry of Justice, L┐’i╒at Tamayyuz al-A╒k┐m al-Shar‘iyyah, Royal Agreement No. 24836,
29 Shaww┐l, 1386 (Feb. 9, 1967). Sec. 13. The Board of Review does not have the power to
reverse the decision of a lower court without first engaging in an exchange of views with the
trial judge. If after this exchange neither of the courts has changed its view, then the board is
obliged to set aside the judgment, but it does not give a judgment itself and must remand the
case for a fresh retrial before a different judge. See, ibid., Sec. 17.
226
Judges in the Kingdom are independent of the Executive. Article 46 of the Basic Regulations
states that, “[t]he judiciary shall be an independent authority and, in their administration of
justice, judges shall be subject to no authority other than that of Islamic Shari‘ah.” The same
article provides that “[n]o one may interfere with the judiciary.” Article 5 of the Ordinance
concerning the Prosecution of Ministers prohibits any interference with Courts affairs, and
makes personal interference with the affairs of the judiciary a crime punishable with
imprisonment for a term ranging from three to five years. See, The Law of the Judiciary, Royal
Decree No. M/64, art. 26 (14/7/1395 AH/Jul. 23, 1975), O. G. Umm al-Qur┐, no. 2592
(29/8/1395 AH, Sep. 5, 1975).
481
French system227 — a system that does not follow the doctrine of precedent.
Shaykh Mu╒ammad b. Ibr┐h┘m, the then Chief Justice of the Kingdom, had
issued special instructions to judges to avoid precedents set by other judges. 228
This position is in accordance with Islamic law.
Speaking in the Indian context, Tahir Mahmood asserts that the common-
law doctrine of judicial precedent is subscribed to “neither by Islamic law nor
by ancient jurisprudence.” 229 He further argues that both the Hindu and the
Islamic “systems of jurisprudence accord to the “jurist-made” law the place
which common law accords to “judge-made” law. In Islamic legal theory, ijm┐‘
(consensus) and qiy┐s (analogy) belong to the province of the jurists and not
the judges.”230 According to Justice Yaqoob Ali, “Juristic deductions are judge-
made law.”231
Conclusion
The Federal Shariat Court has very limited and exclusive jurisdiction in
matters in which the High Courts and the Supreme Court have no
jurisdiction. Moreover, any important ruling of the Federal Shariat Court is
challenged in the Shariat Appellate Bench of the Supreme Court, which gives
the final decision. In addition, the Supreme Court, the Federal Shariat Court
and the Shariat Appellate Bench have the powers to review their own
decisions. Decisions of the Federal Shariat Court, if challenged and maintained
by the Shariat Appellate Bench of the Supreme Court, or if unchallenged, are
binding on the Supreme Court. The Federal Shariat Court is bound by the
decisions of the Supreme Court and the High Courts in all other matters of
law other than the question of the repugnancy to Islamic law. The question of
whether the binding precedent under Article 189, 201 and 203 GG are Islamic
have not as yet been decided by the Superior Courts but these may probably
never be questioned in the Federal Shariat Court because it does not have
jurisdiction in constitutional matters as well as procedural laws. Other judicial
norms regarding precedents established over time by the Superior Courts
might not be questioned by the Federal Shariat Court because this would
mean assuming jurisdiction in matters in which it has no powers; secondly, it
227
Vogel, Islamic Law, 96, n. 55. Hanson argues that the Saudi regulations in the field of public
as well as civil law have been influenced by the Egyptian and French legal systems. Hanson,
“The Influence of French Law on the Legal Development of Saudi Arabia,” Arab Law
Quarterly, 2:3 (1987), 290.
228
See, fatw┐ no. 1799, dated 3/9/1380 AH as quoted in al-Dagh┘sar, “╓ujjiyyat al-Saw┐biq al-
Q┐n┴niyyah,” 194–95.
229
Tahir Mahmood, Personal Laws in Crisis (New Delhi: Metropolitan Book Co., 1986), 59.
230
Ibid., 59, n. 23.
231
PLD 1972 SC 139, at 235 (QQ).
482 MUHAMMAD MUNIR
would mean overruling cases of the Supreme Court as well as the High Court;
and thirdly, it would tantamount to interference in the powers of these
Courts.
The fuqah┐’ wrote books containing the preferred rules that were to be
followed. In al-J┐mi‘ al-╗agh┘r, Im┐m Shayb┐n┘ focused entirely on the
preferred rules that were to be followed by people as well as the q┐╔┘s. In these
books, preference is usually given to the rules that came earlier in time. This
was done to base the statement of a rule with the opinion(s) of the earlier
Im┐ms. This conforms with the system of precedents in Islamic law. In Islamic
law, the precedents assigned priority are those that were laid down first and
not those that came later. 232 In Islamic legal history, there were no fixed
institutions for appeal but cases were sometimes referred for review.
According to the majority of schools every judge should be a mujtahid. In
addition, one mujtahid is not bound by the ijtih┐d of another. A common man
cannot be a mujtahid and he must follow a mujtahid without knowing the
proof for his ijtih┐d. Such a man is called a muqallid (imitator). In Islamic legal
history; the founders of the schools of thought were independent mujtahids
and their fellow disciples were mujtahids within their respective schools. In
Pakistan, the practice of binding precedent under Article 189, 201 and 203GG
is “institutionalized taql┘d” because the higher Courts bind the lower Courts.
Moreover, in practice Islamic law is enforced by the national courts and
precedent is institutionalised, which means that decisions of the superior
courts concerning Islamic law become precedents. This is a unique blend
found in Pakistani law. The same is true of Bangladesh and India where
Islamic law is enforced by the national courts.
In Islamic legal theory, a judge is not bound by his own previous decision
and he can change his ijtih┐d if he knew that his previous ijtih┐d was wrong.
‘Umar b. al-Kha══┐b, the second Caliph, not only ordered it but also practiced
it. In Saudi Arabia, the doctrine of binding precedent is not practiced and
courts are not bound by their own previous decisions or the decisions of other
courts. Finally, the doctrine of precedent restricts judges from undertaking
ijtih┐d, and it is against the independence of the judiciary.
* * *
232
See, Nyazee, “Introduction” to al-Hid┐yah, xvi.

Precedent in Islamic Law With Special Reference To FSC

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Islamic Studies 47:4 (2008) pp.

Precedent in Islamic Law with Special Reference to

© Dr Muhammad Hamidullah Library, IIU, Islamabad. http://iri.iiu.edu.pk/

M. P. Jain’s Outlines of Indian Legal History,17 and V. D. Kulshreshtha’s

The Place of Islamic Legal Principles in Pakistani Legal System

Precedent, therefore, played a significant role in the shaping of the legal

(B) The Place of Islamic Legal Principles in Pakistani Legal System

Haq by applying the doctrine of necessity.

of law. As I have mentioned elsewhere, 83 in Pakistan the Enforcement of

While interpreting and explaining the Shari‘ah the recognized principles of

Stare Decisis in Pakistani Law with Special Reference to The

Constitutions.91 In the present Constitution, by virtue of Article 189, the

Both these decisions are self-contradictory and constitute very bad

(B) Stare Decisis and Federal Shariat Court

Bench of the Supreme Court or challenged, but maintained, would be binding

Precedent and Islamic Legal Theory

As is well known, Im┐m Mu╒ammad b. al-╓asan al-Shayb┐n┘ (d. 189/804)

Fur┴‘ al-╓anafiyyah by al-╓┐kim al-Shah┘d al-Mirwaz┘ (d. 334/945), Mukhta╖ar

This system of precedents attaches significance to chains coming down

thus obviously not precedents. They resemble what we know throughout

he wants to exercise ijtih┐d. Once a person fulfils these conditions, being a

q┐╔┘ has to be a mujtahid: thereby, he is not allowed to follow the ijtih┐d of a

institutionalized.199 Thus, on the one hand, precedent is binding and on the

‘Umar personally practiced what he asked his deputies to do. It is

The Saudi Legal System and Precedent

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